,'VS.^r' 


HALF  A  CENTURY  WITH  JUDGES 
AND  LAWYERS 


BY 

JOSEPH   A.    WILLARD 

CLERIC   OF  THE  SUPERIOR   COURT  OF   MASSACHUSETTS 


BOSTON    AND    NEW    YORK 
HOUGHTON,  MIFFLTN   AND   COMPANY 

1895 


Copyright,  1895, 
By  JOSEPH  A.   WILLARD. 

All  rights  reserved. 


SECOKD    EDITION. 


77ie  Riverside  Press,  Cambridge,  Mass.,  U.  S.  A. 
Electrotyped  and  Printed  by  H.  O.  Houghton  &  Co. 


PREFACE. 

Veey  often  the  preface  is  the  most  impor- 
tant portion  of  a  work. 

The  stories,  anecdotes,  scenes,  in  this  collec- 
tion, by  whatever  name  they  may  he  called,  are 
mainly  from  my  own  hearing  and  personal 
observation ;  as  to  those  which  are  not  so,  I 
have  endeavored  to  state  the  facts  correctly. 
These  I  am  sure  I  do  not  forget,  though  I  may 
not  have  named  in  every  instance  the  exact  year 
of  their  occurrence.  I  should  have  been  pleased 
to  delineate  and  describe  at  greater  length  the 
personages  who  figure  in  these  reminiscences,  as 
their  actual  appearance  is  imknown  to  many  of 
the  younger  members  of  the  bar ;  but  the  work 
would  be  too  great.  Moreover,  I  am  not  able 
to  do  it,  currente  calamo. 

Many  of  the  anecdotes  have  been  current 
among  the  senior  members  of  the  bar,  and 
others  have  been  told  by  me,  and  so  have 
become  known. 


IV  PREFACE. 

I  am  handicapped  very  much  in  tliis  :  that, 
as  I  have  said,  the  reader  is  not  acquainted 
with  the  actual  appearance  of  the  persons  re- 
ferred to,  their  dress,  their  tones  of  voice,  their 
tout  ensemble,  so  to  speak;  and  hence  many- 
sayings  and  doings  will  seem  stale,  flat,  and 
unprofitable,  and  the  point  may  be  lost. 

It  is  quite  essential  to  be  acquainted  with  the 
dramatis  personce  to  appreciate  a  joke  in  full. 
I  have  therefore,  where  I  thought  it  proper, 
given  names ;  but  in  some  instances  a  just  re- 
gard for  the  feelings  of  those  living  has  led  me 
to  refrain. 

I  have  not  written  aught  in  malice,  and  I 
launch  this  trifle,  trusting  to  the  good-will  of 
my  brethren  of  the  bar  who  have  known  me 
so  long,  and  by  whom  I  have  always  been 
treated  with  the  utmost  kindness  and  consid- 
eration. 


CONTENTS 

PAGE 

I.    QtTis  Apekit  ?    .         »       .  1     .       vi.       .         .  1 

TT    r  T^£     iU^^^^ 

II.  Curia     .        .        ,^ .54 

III.  Res  Judicata 84 

IV.  Par  Horkidum      .        .        .        .     ,  .        ,        ,  145 
V.  Obiter  Dicta.    Part  I.  .     -V-^fS^^     .        .      157 

VI.  Obiter  Dicta.    Part  II.     .        •./->•        •        •  196 

Vn.  In  Re-Tort.    Part  I.      . "^^      V      .        .      282 

Vin.  In  Re-Tort.    Part  II.        .        .        .        .        .  293 

Index 363 


HALF    A    CENTURY    WITH    JUDGES 
AND  LAWYERS. 


QUIS   APERIT  ? 

I  SHALL  begin  by  giving  some  account  of 
myself.  The  ancestor  from  whom  my  branch 
of  the  Willard  family  descended  was  Major 
Simon  Willard,  born  in  the  parish  of  Horsmon- 
den,  county  of  Kent,  England.  He  came  to 
Massachusetts  in  1634,  and  after  a  long  and 
honorable  career  in  the  service  of  the  colony 
was  actively  engaged  in  military  duty  in  King 
Philip's  War  at  the  time  of  his  death.  He  first 
took  up  his  abode  in  Cambridge,  and  nearly  two 
centuries  later  my  father  purchased  the  house 
and  lot  of  land  which  had  been  the  property  of 
Simon,  and  subsequently  resided  there.  A  stone 
erected  at  Concord,  Mass.,  where  the  Major 
afterwards  lived,  bears  the  following  inscription : 

"  Here  on  this  farm  dwelt  Simon  Willard, 
who  did  good  service  to  the  town  and  his  coun- 
try, for  more  than  forty  years." 

I  am  a  descendant  from  Simon,  in  the  seventh 
generation.     My  paternal  grandfather  was  Jo- 


2  QUTS   APERTTf 

seph  Willard,  President  of  Harvard  Collep^e. 
My  father,  Sidney  Willard,  who  was  graduated 
from  Harvard  in  the  class  of  1798,  was  Professor 
of  Latin,  Hebrew,  and  other  Oriental  languages 
for  nearly  twenty-five  years,  as  well  as  librarian 
and  tutor.  He  was  also  a  Representative  in  the 
Massachusetts  Legislature  in  1833,  1837,  and 
1843 ;  Senator  in  1834,  1835,  1839,  and  1840 ; 
member  of  the  Governor's  Council ;  and  Mayor 
of  Cambridge  in  1848  and  1850. 

My  maternal  grandfather  was  Asa  Andrews, 
a  well-known  lawyer  in  Ipswich,  in  the  county  of 
Essex,  and  a  dii'ect  descendant  of  Ann  Dudley, 
better  known  as  Ann  Bradstreet.  I  am  of  the 
fifth  generation  from  Ann  Bradstreet,  wife  of 
Governor  Bradstreet. 

Mr.  Andrews  was  appointed  collector  of  the 
port  of  Ipswich  by  President  Washington.  He 
held  his  commission  until  the  election  of  An- 
drew Jackson,  when  he  was  removed.  The 
United  States  government  brought  a  suit  against 
him  and  recovered  $5000.  Rufus  Choate  and 
Judge  Otis  P.  Lord,  then  a  practicing  lawyer, 
saw  the  injustice  of  it,  and  brought  a  writ  of 
error  in  the  United  States  Court  at  Washington. 
The  judgment  was  reversed,  and  he  in  turn 
recovered  judgment  against  the  United  States 
for  $5000,  which  sum  was  paid  to  him,  Mr. 
Choate  and  Mr.  Lord  giving  their  services. 


EARLY    YEARS.  3 

I  was  born  in  Cainbrklge,  Mass.,  on  the  29th 
day  of  September,  181G.  IVIy  mother  died  one 
year  after  my  birth.  The  first  seven  years  of 
my  life  were  passed  in  Cambridge  ;  the  next 
year  at  Westford  Academy,  of  which  John 
Wright  was  teacher,  and  where  I  began  the 
study  of  the  classics. 

After  that  I  returned  to  Cambridgeport,  and 
resumed  my  studies  at  a  school  in  which  James 
Freeman  Clarke  was  teacher.  And  here  I  will 
mention  my  second  meeting  with  James  Free- 
man Clarke,  some  forty  years  later,  when  at  a 
friend's  wedding  where  he  officiated  I  recalled 
myself  to  his  memory  as  his  old  pupil,  Joseph 
A.  Willard,  and  received  the  following  kindly 
criticism  :  "  Oh,  yes,  I  remember  you  well,  — 
a  very  mischievous  boy,  but  nothing  malicious." 

Shortly  after  this,  my  father  let  his  house  in 
Cambridge  to  Rev.  Mr.  Coit,  an  Episcopal  min- 
ister who  was  settled  there,  and  who  married  a 
sister  of  Wendell  Phillips  ;  my  father  and  I 
residing  with  them.  I  remained  at  school  in 
Cambridgeport  for  some  time. 

There  was  then  no  means  of  conveyance  to 
Boston,  except  a  stage,  which  ran  twice  a  day 
to  and  fro,  and  was  driven  by  Cyrus  Morse,  an 
old  stage-driver ;  so  I  walked  to  my  school 
twice  each  day.  This  stage  carried  the  mail, 
the  postage  on  letters  from  Cambridge  to  Bos- 


4  QUIS   APERlTf 

ton  being  then  six  cents.  The  fare  was  twenty- 
five  cents.  In  the  summer,  the  time  of  leaving 
Cambridge  was  eight  A.  m.  and  two  P.  M.  The 
stage  returned  from  Boston  at  twelve  and  six. 
In  the  winter,  the  time  was  an  hour  later  in  the 
morning  and  an  hour  earlier  at  night. 

Mrs.  Morse,  wife  of  Cyrus,  had  charge  of  me 
for  a  short  time  after  my  mother  died,  and 
always  in  after  years  regarded  me  with  mo- 
therly affection ;  frequently  as  I  passed  her  house 
on  my  return  home  from  school  when  at  Cam- 
bridge, she  had  a  slice  of  brown  bread  and 
butter  ready  for  me.  If  I  happened  to  be  on 
the  road  when  Mr.  Morse  came  out  from  Boston 
with  the  stage,  he  always  asked  me  to  get  on 
and  ride  with  him  while  he  distributed  his  passen- 
gers at  their  several  homes.  When  Morse  got 
too  old  to  drive  he  resigned ;  and  when  he  had 
partially  lost  his  mind  the  ruling  passion  was 
so  strong  that  he  hitched  lines  to  his  tea-kettle 
and  drove  at  home. 

The  stage  property  was  owned  by  James  B. 
Read,  who  also  kept  a  livery  stable,  and  who, 
knowing  that  I  was  developing  a  fondness  for 
horses,  often  gave  me  a  ride  on  horseback 
whenever  any  of  his  horses  needed  exercise. 
For  greater  accommodation  of  the  public  a  two- 
hourly  stage,  established  by  Eben  Kimball  on 
April   1,  1826,  and  later  an  hourly,  were  put 


AN   EDUCATED   HORSE.  6 

on  the  road,  and  other  drivers  were  joined  with 
Morse,  in  charge  of  these  conveyances. 

In  1824,  I  remember  being  one  of  the  school- 
children in  Cambridge  who  were  arrayed, 
boys  and  girls,  on  each  side  of  Main  Street, 
with  a  badge  pinned  to  each  of  them,  on 
which  was  inscribed,  "  Welcome,  Lafayette," 
with  his  likeness  upon  it ;  while  Lafayette  sat 
in  a  barouche  which  was  driven  between  the 
lines,  the  boys  bowing,  and  the  girls  courtesying. 

At  the  house  where  I  boarded  in  Cambridge- 
port  lived  a  gentleman  of  singular  character 
by  the  name  of  Amasa  Clapp.  He  was  a 
good  singer.  He  had  in  his  possession  a 
handsome  mare,  which  he  had  educated,  and 
which  would  tell  the  time  of  day,  take  off  the 
owner's  hat,  and  perform  various  other  tricks. 
Erastus  Brigham,  a  brother  of  Chief  Justice 
Brigham,  was  also  a  musician,  and  a  friend  of 
Clapp,  and  they  often  made  the  welkin  ring 
with  their  songs  and  stories. 

Many  years  after,  while  riding  horseback  one 
day  in  Dorchester,  I  lost  my  way.  Along  the 
road  came  a  rider  in  whose  person  I  recognized 
Mr.  Clapp. 

I  said :  "  Mr.  Clapp,  where  am  I  ?  " 

He  said :  "  Who  are  you  ?  " 

I  replied  :  "  My  name  is  Willard ;  I  boarded 
with  you,  at  Cambridgeport,  many  years  ago, 


6  aUlS   APERITf 

when  I  was  a  boy,  and  you  had  a  horse  which 
would  tell  the  time." 

"  That 's  singular,"  he  said.  "  I  have  one  here 
now  that  will  do  the  same  thing.  Charley, 
what  time  is  it?"  and  by  some  means  or 
signals,  the  horse  pawed  the  hour  and  minute. 
Afterward  I  saw  Mr.  Clapp  frequently  on 
the  mile  trotting  ground,  in  sleighing  time, 
sitting  in  a  crate  fastened  to  a  pair  of  runners 
with  a  horse  harnessed  to  it,  Mr.  Clapp  fan- 
tastically dressed  and  attracting  general  atten- 
tion. 

In  the  autumn  of  1824,  a  private  school 
was  opened  in  Cambridge,  to  which  I  went, 
and  among  my  schoolmates  w^ere  Thomas 
Thacher  Higginson,  Charles  E.  Ware,  Horatio 
Bigelow,  Charles  and  Arthur  Devens,  George 
A.  and  Israel  Foxcroft,  Richard  H.  Dana, 
jr.,  John  Holmes,  brother  of  Oliver  Wendell 
Holmes,  Eugene  and  Henry  W.  Fuller,  brothers 
of  Margaret  Fuller,  and  others.  Among  the 
teachers    of    this    school   were    Ralph    Waldo 

Emerson,  Sanford,    Barzillai    Frost,    and 

Henry  S.  McKean.  Sunday  services  took 
place  in  the  chapel,  in  University  Hall,  all  the 
professors,  their  families,  and  the  students  at- 
tending. 

President  Kirldand  and  Rev.  Dr.  Ware 
preached    alternately ;     the  organ  was    played 


FRESH  POND    HOTEL.  7 

by  one  of  the  students,  and  the  choir  furnished 
from  the  same  source. 

In  vacation  we  attended  services  in  the 
old  meeting-house  in  the  square,  Rev.  Abiel 
Holmes,  minister ;  and  I  remember  well  on 
entering  the  pew  one  Sunday,  the  lines  of  some 
sacrilegious  student,  who  had  written  on  the 
boards  of  the  pew,  — 

"  Dr.  Holmes  devoutly  looks, 
First  to  Heaven,  and  then  his  hooks." 

My  father  lived  near  the  residence  of  Mr. 
Edmund  T.  Dana,  a  brother  of  Richard  H. 
Dana,  senior.  Mr.  Edmund  T.  Dana  was  a 
retired  gentleman  and  somewhat  of  an  artist. 
In  1827,  or  1828,  I  cannot  say  exactly  which, 
I  went  one  night  with  him  to  the  old  Federal 
Street  Theatre  to  see  "  Der  Freischiitz,"  with 
Henry  J.  Finn  as  Caspar.  It  was  not  then  an 
opera,  but  a  play.  The  diablerie  was  to  me 
so  terrific,  that  when  I  reached  home  and  went 
to  bed,  though  tired  with  the  walk  of  three 
miles  from  Boston,  I  could  not  sleep  because 
of  the  weird  impression  it  had  made  upon  me. 

Fresh  Pond  was  a  gentleman's  resort  for 
fishing,  fish  dinners,  and  suppers.  A  well-known 
place  was  kept  there  by  Jacob  Wyeth,  who  was 
a  graduate  of  Harvard,  and  quite  a  learned  man. 
I  remember  on  one  occasion  going  there  with 
my  father,  accompanied  by  Professors  Channing 


8  QUJS   APERITf 

and  Sales.  We  were  in  a  flat-bottomed  boat, 
and  when  we  endeavored  to  row  in,  such  a  stiff 
breeze  was  blowing  that  we  could  make  no  head- 
way. Professor  Sales  in  sonorous  tones  uttered 
his  usual  expletive,  "  By  George !  we  shan't  get 
in ; "  but  luckily  for  the  three  learned  profes- 
sors, two  students  (one  of  them  the  late  Robert 
Rantoul)  who  were  in  a  sailboat  near  by  came 
to  our  assistance  and,  taking  us  in  tow,  brought 
us  safely  to  the  wharf. 

Nathaniel  J.  Wyeth  succeeded  Jacob,  but 
being  an  energetic  and  impulsive  man,  life 
there  was  too  quiet  for  him,  and  in  1830,  or 
thereabouts,  he  organized  a  band,  in  which  were 
many  of  my  acquaintances,  for  an  expedition  to 
the  far  West,  and  crossed  the  Rocky  Mountains 
into  Oregon.  Their  sufferings  were  extreme. 
After  he  returned  he  became  a  large  ice  dealer, 
and  was  one  of  the  first  to  send  ice  abroad. 
The  hotel  then  went  into  the  hands  of  Jonas 
Wyeth.  Latterly  it  has  been  some  kind  of  a 
Roman  Catholic  Institution  which  is  now  re- 
moved, and  the  ground  taken  for  a  public  park. 

Commencement  days  were  the  great  sensation 
of  Cambridge.  Some  time  beforehand  a  num- 
ber of  improvised  sheds  covered  with  brush 
were  built  for  the  teams  that  came  from  Boston. 
The  streets  were  lined  on  both  sides  with  candy 
stands,    gambling,    dice,    and    roulette   tables ; 


HARVARD    COMMENCEMENTS.  9 

there  were  booths  on  the  common  with  fiddling 
and  dancing,  and  inside  were  shows  of  learned 
and  flying  horses,  and  of  learned  pigs.  A 
great  many  gamblers  and  roughs  came  out  from 
Boston  and  made  Cambridge  boisterous  and 
disorderly  for  three  days  ;  many  fights  ensued, 
and  many  black  eyes  were  given,  but  there 
was  no  pugilistic  ring,  and  though  football  was 
played  on  the  college  grounds  there  was  no  slug- 
ging and  no  broken  limbs. 

At  one  of  the  Commencements  the  Siamese 
twins  were  exhibited  there.  They  were  joined 
together  by  a  band  of  flesh  from  side  to  side,  as 
nearly  as  I  remember,  of  about  four  inches  in 
width ;  the  physicians  said  that  the  blood  in 
their  veins  and  arteries  flowed  through  it,  and 
that  they  were  afraid  to  attempt  their  separa- 
tion. Subsequently  they  went  south  and  pur- 
chased a  plantation.  They  made  another  visit 
to  Boston  later,  and  died  shortly  after  their 
return  home. 

Captain  Coffin,  who  brought  them  over  from 
Siam,  was  a  friend  of  my  uncle,,  who  was  also  a 
captain  of  an  East  Indiaman  ;  thus  I  had  free 
admittance  to  the  show,  and  from  curiosity  my 
acquaintance  soon  progressed  to  friendly  rela- 
tions. They  were  adepts  at  the  game  of  check- 
ers, and  I  frequently  saw  them  play  games  with 
other  persons,  although  I  never  saw  them  both 


10  QUIS   APERITf 

attempt  to  move  at  once.  Sometimes  one  v.-ould 
move,  sometimes  the  other.  Captain  Coflin  said 
that  only  once  did  he  ever  know  them  to  disagree ; 
one  wanted  to  bathe  and  the  other  did  not. 

As  an  instance  of  their  perfect  unanimity  of 
feeling,  he  said,  one  day  when  the  hatches  of 
the  ship  were  off  to  ventilate  the  hold,  the  twins 
being  then  abreast  of  the  hatchway,  the  ship 
gave  a  lurch,  when  both  sprang  simultaneously 
and  cleared  the  hatchway.  Had  they  been  of  a 
different  mind,  they  would  probably  have  been 
severely  injured. 

I  remember  another  pair  of  twins  who  were 
not  joined  together  by  flesh,  who  kept  an  oyster 
cellar  in  Cambridge.  They  were  simple  minded, 
and  the  boys  and  students  were  continually  teas- 
ing them.  Their  sign  was  "  Peter  and  Solomon 
Snow,"  and  one  morning  it  was  covered  with  a 
quotation  from  Horace,  "  Jam  satis  nivis.^^ 

There  were  other  quaint  characters  in  Cam- 
bridge, more,  it  would  seem,  than  there  are  in 
every  country  town  ;  the  contrast  between  the 
college  and  the  town  served  to  render  more 
marked  the  peculiarities  of  the  latter.  Royal 
Morse,  the  auctioneer,  was  another  original,  and 
a  bright,  amusing  man.  I  remember  one  thing 
in  particular,  that  after  one  of  his  sales  was 
over,  a  table  was  left.  He  asked  his  clerk  who 
bought  that  table.     "  Mr.  and  Mrs. " 


SOME    QUAINT   CHARACTERS.  11 

Then  Mr.  Morse  said:  "They  are  the  most 
un-eom-for-^(/Z)/e  folks  I  ever  saw." 

Abram  Bigelow,  who  was  somewhat  of  an 
aristocrat,  was  at  that  time  clerk  of  the  courts. 
My  father  told  me  this  story  :  — 

One  Mr.  Tarbell,  of  Cambridge,  who  had  been 
a  cooper,  was  appointed  deputy  sheriff.  This 
was  much  against  the  notions  of  Clerk  Bigelow, 
and  when  Mr.  Tarbell  made  his  first  return  of 
writs  to  the  clerk's  office,  Mr.  Bigelow  looked 
them  over  critically,  and  observed  something 
which  was  not  quite  correct.  He  said :  "  Mr. 
Tarbell,  bung  stave  loose  here,  sir." 

George  Meacham,  of  Cambridge,  was  another 
well-known  character,  and  a  great  horsedealer. 
He  was  in  the  habit  of  making  trips  or  excur- 
sions to  Canada,  for  horses.  He  told  me  that 
when  he  arrived  at  Montreal  —  a  serious  journey 
in  those  days  —  he  gave  the  priest  who  offici- 
ated at  the  principal  Roman  Catholic  church 
fifty  dollars  for  announcing  to  the  congregation 
after  services  were  over  that  Colonel  Meacham 
was  in  town,  and  would  remain  for  a  week  ;  and 
in  consequence  the  farmers  would  bring  in  their 
horses  to  him. 

Old  Gilson  was  a  cobbler  who  kept  shop  at 
the  entrance  of  a  passageway  to  the  wharf  where 
the  students  and  boys  bathed.  He  usually  had 
a  companion  with  him  named  Gordon.     Gilson 


12  QUIS   APERIT? 

claimed  to  have  broken  his  neck  by  falling  off 
his  horse  on  some  muster  field,  and  the  boys 
liked  to  <4o  in  and  tease  the  old  man  and  hear 
him  tell  his  story.  Before  he  would  finish  it, 
while  pounding  leather  on  his  lapstone,  there 
would  be  a  sudden  jerk  in  his  neck.  "  There 
goes  my  neck  again,"  he  used  to  say;  and  put- 
ting a  hand  on  each  side  of  his  head  he  would 
straighten  it,  remarking,  "Now  it  is  all  right; 
Gording,  pass  the  rum." 

Another  singular  character  was  Abram  Hil- 
liard,  a  lawyer,  and  a  very  able  one.  He  was 
much  troubled  with  what  is  now  called  neural- 
gia, which  he  called  tic  douloureux,  and  in  cold 
weather  always  wore  a  long  black  coat  reaching 
to  his  heels,  his  neck  bound  with  a  red  bandanna. 
He  was  indeed  ''^Justus  et  tenax  i^'^'^l^ositiy 
Having  once  carried  a  case  of  one  of  his  clients 
to  the  Supreme  Coiu't,  he  told  him  that  the  law 
was  in  his  favor.  The  Supreme  Court,  however, 
decided  adversely,  and  when  the  client  first  met 
him  after  the  decision  he  said :  "  Mr.  Hilliard, 
the  Supreme  Court  has  decided  that  so  and  so 
is  not  the  law; "  to  which  Mr.  Hilliard  replied, 
"  The  Supreme  Court  decides  one  way,  but  / 
decide  the  other.'''' 

For  Sunday-school  I  attended  Dr.  Holmes's 
church,  where  a  kind  old  deacon  named  Munroe 
went  also.     I    studied   the   Westminster  Cate- 


IN  PERILS    OF  WATERS.  13 

chism,  which  was  as  repugnant  to  me  then  as  it 
is  now,  and  neglected  my  lessons. 

The  deacon  did  not  seem  anxious  to  compel 
me,  and  perhaps  his  gentle  latitudinarianism 
bore  fruit  in  the  next  generation,  for  his  three 
sons  (two  of  whom  I  knew  well)  each  joined  a 
different  denomination,  one  becoming  a  Unita- 
rian, one  a  Baptist,  and  the  other  an  Episcopal 
clergyman. 

There  was  a  sloop  in  Cambridge  called  the 
Harvard,  belonging,  I  think,  to  Harvard  Col- 
lege, which  made  periodical  trips  during  the 
open  weather  from  "  Down  East "  to  Cambridge 
with  wood  to  supply  the  College.  She  was 
commanded  by  Captain  Elwell,  who  was  a  kind, 
genial  old  man,  and  very  willing  to  loan  us  the 
sloop's  boat  to  row  about  the  river ;  and  that 
was  my  first  experience  on  the  water,  to  which 
I  intuitively  or  naturally  took. 

I  learned  early  to  swim  and  also  to  ride  horse- 
back ;  of  my  horseback  excursions  I  shall  speak 
hereafter. 

Notwithstanding  my  knowledge  of  swimming, 
I  was  nearly  drowned  twice. 

The  first  time,  I  was  on  my  way  to  see  Mr. 
Lauriat  go  up  in  a  balloon.  I  took  a  boat 
from  Cambridge,  and  after  getting  through  the 
two  bridges  (there  was  no  Brookline  bridge 
then)  I  put  up  my  foresail.  The  boat  was 
ballasted  with  two  56-pound  weights. 


14  QUIS   APERIT? 

After  proceeding  a  short  distance  I  attempted 
to  put  up  the  mainsail.  Just  as  I  had  shipped 
it  the  main  sheet  caught,  and  before  I  could 
reach  the  tiller  a  flaw  struck  the  boat,  the 
ballast  shifted  and  rolled  down  to  the  gunwale, 
and  over  went  the  boat,  throwing  me  into  the 
water.  I  came  to  the  surface,  and  as  the  craft 
was  afloat  on  her  beam  ends,  I  climbed  up  on 
her.  The  water  was  very  cold,  as  it  was  early 
in  the  spring,  and  I  sat  shivering  on  the  boat, 
until  she  was  halfway  between  Magazine  Wharf 
and  Boston,  a  distance  of  a  mile  or  thereabouts, 
when  a  party  of  United  States  officers  who  were 
surveying  the  river  picked  me  up,  towed  my 
boat  ashore,  turned  her  over  and  emptied  out 
the  water ;  then  I  righted  my  ballast,  put  up 
my  foresail,  and  sailed  to  Boston. 

Another  time  when  I  was  in  Gottenburg, 
Sweden,  I  had  some  shirts  hanging  in  the  rig- 
ging to  dry.  They  blew  overboard,  and  I 
stripped  and  plunged  over  the  side  of  the  ship  to 
recover  them.  I  had  not  considered  the  cold- 
ness of  the  water  in  those  northern  latitudes,  and 
had  swam  not  more  than  two  rods  from  the 
ship,  when  I  felt  as  though  something  had 
clasped  me  tightly  around  the  body,  and  I  gasped 
for  breath,  and  sank.  I  came  to  the  surface, 
and  sank  again. 

When  I  came  to  the  surface   once   more,  I 


TRAVELING    BY   STAGE.  15 

felt  that  something  hit  my  head.  I  seized  it, 
and  it  proved  to  be  a  coil  of  rope  thrown  from 
the  ship.  I  was  hauled  in,  more  dead  than  alive, 
and  restored. 

There  is  a  common  notion  that  at  such  a 
moment  of  extremity  all  the  sins  and  wicked- 
ness of  a  whole  life  appear  before  the  disowning 
man  as  if  revealed  by  a  lightning  flash :  I  am 
sorry  not  to  be  able  to  confirm  this  from  my  ex- 
perience on  this  occasion  ;  for  after  the  pain 
(which  I  sujjpose  was  the  cramp)  had  left  me, 
everything,  on  the  contrary,  appeared  beautiful, 
and  I  felt  as  if  I  were  going  to  sleep.  Not 
being  able  to  attribute  the  peace  and  calm  I  felt 
at  the  time  to  any  exemption  from  human 
frailty,  the  fact  remains  that  the  apparitions  of 
the  past  failed  to  appear,  and  after  the  episode 
at  Gottenburg  I  never  had  another  opportunity 
to  test  the  truth  of  the  old  belief. 

In  1828,  I  was  accustomed  to  go  occasionally 
with  my  father  in  the  stage  to  Portsmouth,  N.  H., 
his  mother's  birthplace,  and  where  his  aunts  and 
uncles  lived.  Generally  I  rode  on  the  outside 
of  the  stage,  even  in  winter.  There  were  many 
marked  characters  among  the  stage-drivers,  not- 
ably an  odd  little  figure,  Jack  Meudum  by  name, 
whose  shortness  of  limb  obliged  him  to  be 
strapped  to  his  seat.     On  one  of  our  Portsmouth 


16  QUTS   APE R IT? 

journeys  one  very  cold  day,  my  father  asked 
for  me  the  privilege  of  a  seat  beside  tlie  driver, 

Mendiim.      "  D it,"    said    Jack,    "  he  '11 

freeze,  but  I  '11  try  him ;  "  and  I  mounted  to  the 
place  of  perilous  honor,  and  rode  safely  to 
Portsmouth,  a  proud  and  hai3py  boy. 

The  stage  started  from  Wildes'  Hotel  in  Ann 
Street,  Boston,  now  North  Street,  at  about  7.30 
in  the  morning,  stopped  at  Lynn  Hotel,  which 
then  stood  near  the  westerly  end  of  the  Common 
in  that  city,  where  the  fares  were  taken,  and  the 
horses  watered  by  an  old  colored  man  named 
True,  a  well-known  factotum  about  the  hotel. 

At  Salem,  Ipswich,  Newburyport,  and  Hamp- 
ton the  horses  were  again  changed,  and  the 
stage  arrived  at  Portsmouth  about  7.30  in  the 
evening  ;  and  this  was  then  regarded  as  speedy 
traveling. 

Now  in  this  age  of  rapid  transit,  the  same 
twelve  hours  takes  us  to  Portsmouth,  with  the 
voyage  to  and  from  the  Isles  of  Shoals,  includ- 
ing a  pause  for  dinner,  and  a  leisurely  return 
to  Boston. 

I  pursued  my  studies  until  the  autumn  of 
1830,  my  father  intending  me  for  college. 
About  that  time  I  had  gone  through  Nepos, 
Csesar,  Sallust,  a  part  of  Cicero  and  Horace,  the 
-^neid  of  Virgil,  and  some  Greek  ;  the  names 
of  the  books  I  do  not  recollect,  as  I  did  not  take 
readily  to  Greek. 


PIGEON  S/fOOTIXa.  17 

I  also  went  tlu'ougli  the  regular  course  of 
arithmetic,  geography,  and  algebra,  and  had  I 
remained  at  home,  I  should  have  tried  to  enter 
Harvard  the  following  year.  I  had  also  a  great 
fondness  for  reading-  tales  of  fiction  and  noted 
trials  ;  some  of  my  favorite  books  were  Robin- 
son Crusoe,  Sanford  and  Merton,  Hogg's  Scot- 
tish Tales,  Fielding,  and  Smollett,  Miss  Edge- 
worth,  etc. 

My  holidays  were  Wednesday  and  Saturday 
afternoons,  and  I  usually  spent  them  shooting 
game  in  the  Stoneham  woods. 

I  had  an  excellent  gun,  a  well  trained  dog, 
and  I  never  went  out  shooting  without  getting 
at  least  six  or  seven  woodcock  and  as  many 
partridges.  Occasionally  my  companion  and  I 
varied  our  sport  by  decoying  wild  pigeons  into 
the  open  field,  concealing  ourselves  behind  an 
extemporized  screen  made  of  brush,  and  shoot- 
ing them  on  what  was  called  a  setting-pole.  A 
stake  was  placed  in  the  ground  ten  feet  high, 
another  one,  fifty  feet  from  that,  fifteen  feet 
high  ;  then  a  long  pole  resting  on  each  end  of  the 
stakes  at  an  angle  of  about  forty-five  degrees,  so 
that  if  the  long  pole  was  extended  it  would  just 
about  reach  the  muzzle  of  the  gun.  The  birds 
were  decoyed  by  means  of  a  captured  wild 
pigeon,  whose  flight  was  checked  by  a  light  cot- 
ton string  tied  to  its  legs,  and  if  it  fell  to  the 


g 


round  it  was  thrown  aeain  into  the  air. 


&' 


18  QUJS    APERIT? 

When  the  pigeons  lighted  on  this  long  pole, 
which  they  would  do  in  numbers  from  fifty  to 
seventy-five,  we  fired  at  the  same  time,  often 
getting  twenty  or  thirty  pigeons  from  the  two 
shots.  Wild  pigeons  at  that  time  were  so  nu- 
merous here  that  they  lighted  in  the  a})ple- 
trees  in  my  father's  yard.  A  Mr.  Pomeroy 
who  lived  at  Sweet  Auburn,  now  Mt.  Auburn, 
and  raised  strawberries  and  hydrangeas  for  mar- 
ket, caught  hundreds  of  them  on  the  marshes 
with  nets. 

In  the  autumn,  on  the  marshes  in  the  vicinity 
of  my  father's  house,  and  all  along  the  banks  of 
Charles  River,  might  be  found  peeps,  yellow- 
legs,  and  doe  birds  in  great  numbers,  and  occa- 
sionally a  plover. 

Besides  indulging  in  this  favorite  pastime,  I 
rode  horseback  frequently. 

Some  time  between  1826  and  1830  I  went 
with  my  father  to  see  the  Misses  Byles,  daugh- 
ters of  Mather  Byles,  who  lived  on  Tremont, 
opposite  Common  Street. 

I  was  asked  to  sit  in  an  old-fashioned  chair, 
on  the  top  of  which  a  crown  was  carved.  "  Now, 
my  dear,"  said  Miss  Byles,  "  you  can  say  you 
have  been  under  the  crown." 

They  told  my  father  many  anecdotes  of  their 
father.     I  remember  one  instance  of   parental 


DOCTOR    MATHER    BYLES.  19 

and  Puritan  discipline,  very  characteristic  of  the 
man  and  the  times.  They  were  made  to  get  up 
out  of  bed  on  a  very  cold  winter's  night,  just  to 
show  them  how  comfortable  their  bed  was  in 
comparison  with  the  weather ;  an  object  lesson 
which  they  never  forgot. 

And  also  this  one  :  A  man  was  advertised  to 
fly  from  a  certain  place.  A  gentleman  asked 
the  Doctor  if  he  were  going  to  see  him.  "  Pooh, 
no  !  "  said  the  Doctor,  "  I  have  seen  a  horse  fly." 
Not  far  from  the  house  was  a  stagnant  pool  of 
water,  which  the  Doctor  had  often  asked  the  se- 
lectmen to  fill  up.  One  summer  day,  when  it  was 
apparently  dry,  the  selectmen  came  to  examine 
the  place,  and  on  stepping  in,  went  up  to  their 
knees  in  mud  and  water.  The  Doctor  appeared 
and  said  :  "  Gentlemen,  I  am  glad  to  see  you 
stirring  in  the  matter."  He  was  arrested,  taken 
before  a  magistrate,  marched  out  vmder  guard, 
and  discharged.  He  said  he  had  been  "  guarded, 
regarded,  and  disregarded."  In  answer  to  the 
question  asked  of  him  one  day,  whether  he  were 
a  Whig  or  a  Tory,  he  pointed  to  a  tower  not  far 
off.     It  was  an  observ-a-tory. 

In  October,  1830.  I  left  home  for  a  voyage  to 
the  West  Indies.  I  do  not  intend  to  speak  at 
any  great  length  of  my  voyages,  which  continued 
till  the  latter  part  of  1838,  but  this  one  was  so 


20  r^r/.s-  ArnniTi 

unfortunate  in  its  event  for  the  owners,  that  I 
will  give  a  few  particulars.  The  vessel  I  sailed 
in  was  a  fore-and-aft  schooner  of  about  125  tons, 
Isaiah  W.  P.  Lewis,  captain.  We  carried  out 
spars  to  rig  her  into  a  double  topsail  schooner. 
The  first  port  we  made  was  Montego  Bay  in  the 
island  of  Jamaica. 

After  she  was  unloaded,  we  took  on  board 
some  logwood  and  fustic,  which  were  stowed 
fore  and  aft  next  the  keelson  to  make  even  floor- 
ing. Then  the  hold  was  lined  with  mats,  and 
we  took  in  a  cargo  of  oranges  in  bulk;  that  is, 
they  were  poured  immediately  into  the  hold. 

We  had  a  remarkably  quick  passage  to  the 
Balize.  During  the  passage  the  captain  was 
taken  sick  and  became  delirious.  Why  a  steam- 
tug  was  not  hired,  I  never  knew,  for  there  were 
plenty  which  hailed  us,  to  offer  their  services. 

We  attempted  to  go  up  the  river  under  sail ; 
in  some  places,  where  the  current  did  not  flow 
too  rapidly,  we  towed  the  schooner,  and  when 
the  wind  blew  strong  down  the  reaches,  we 
anchored  and  went  asliore. 

One  incident  occurred  which  was  quite  amus- 
ing to  me.  We  happened  to  go  ashore  just  at 
the  time  when  a  large  number  of  slaves  on  a 
plantation  were  going  to  their  dinner.  I  talked 
with  some  of  them,  and  a  very  old  man  with 
white  locks  told  me  how  hard  they  had  to  work. 


.1     VOVAGE    TO    rilE    WEST    f.XD/ES.  21 

I  saitl,  "-Then  yovi  are  glad  when  it  rains." 
"Oh,  no,  Massa,"  he  said,  "de  more  rain,  de 
more  shelly  corn."  We  were  twenty-one  days 
getting  to  a  bend  in  the  Mississippi  called  the 
English  Turn,  where  the  current  was  so  rapid 
that  the  mate  gave  up  all  attempts  to  sail  further, 
and  we  took  a  tug  and  ari-ived  at  New  Orleans 
at  night. 

The  next  day  was  Sunday,  when  Captain 
Lewis  was  taken  ashore.  The  following  day, 
Monday,  the  hatches  were  taken  off,  and  when 
one  of  the  men  jumped  into  the  hold  he  went  in 
above  his  knees  in  rotten  oranges. 

I  think,  as  well  as  I  can  remember,  that  there 
were  not  twenty  bushels  of  sound  oranges  taken 
out  of  the  whole  cargo. 

We  had  brought  as  passengers  from  Montego 
Bay  a  captain  and  two  men  who  had  left  a  ves- 
sel which  had  been  condemned  there  and  sold. 
The  captain,  whose  name  was  Ellis,  brought  the 
proceeds  of  the  sale  with  him.  Sunday  morning 
he  dressed  in  his  best  clothes  and  went  ashore. 
At  twilight,  as  I  was  sitting  on  the  fore-scuttle,  a 
man  with  no  other  clothes  than  a  flannel  shirt 
and  drawers  came  running  breathlessly  on 
board ;  as  he  ran  down  the  companion  way,  I 
said  to  my  shipmate,  "  That 's  Captain  Ellis ; 
had  n't  we  better  see  what  is  the  matter  ? " 
"  No,"  he  said,  "  let 's  mind  our  own  business." 


22  Qr/S    APERIT? 

On  the  following  morning-,  when  we  turned  out, 
we  found  his  underclothing,  covered  with  spots 
of  blood,  on  the  flooring-  of  the  lower  deck,  but 
he  had  disappeared. 

After  Captain  Lewis  had  recovered,  he  set  on 
foot  various  inquiries,  and  at  last  ascertained 
that  Ellis  had,  in  a  moment  of  insanity,  enlisted 
in  the  United  States  service,  and  was  in  one  of 
the  forts  down  the  river.  Having  become  sane, 
he  was  released  after  some  negotiation.  He 
stated  to  Captain  Lewis  that  he  had  taken  with 
him  all  the  money  received  from  the  sale  of 
the  vessel,  and  while  in  a  gambling-house  was 
drugged,  stabbed,  and  robbed,  which  accounted 
for  his  frenzy  on  our  vessel. 

Thereafter  we  took  a  new  mate,  some  new 
men,  a  cargo,  and  sailed  for  Port-au-Prince,  on 
the  island  of  San  Domingo.  On  the  passage  to 
Port-au-Prince,  while  sailing  along  the  south  side 
of  Cuba,  I  met  with  an  accident  which  had  a 
marked  effect  upon  my  subsequent  actions  in 
certain  emergencies,  when  at  sea.  To  a  lands- 
man, it  is  necessary  to  explain  somewhat. 

In  a  schooner  as  rigged  then,  carrying  a  jib 
and  a  flying  jib,  the  jib-boom  passed  through  an 
ii'on  band  about  three  inches  wide,  covered  with 
leather  on  the  end  of  the  bowsprit ;  the  head 
stays  ran  from  the  mast  head  to  the  end  of  the 
bowsprit,   also    to    the    jib-boom.      When   the 


A    VOYAGE    TO    THE     WEST    IX DIES.         23 

schooner  pitched  forward  the  head  stays  wei-e 
slackened,  and  there  was  the  space  of  an  inch  or 
so  between  the  jib-boom  and  the  band.  When 
she  pitched  aft  the  stays  were  tautened,  and  the 
jib-boom  bi'ought  "  chock  up  "  against  the  band. 
I  was  sent  out  to  help  take  in  the  flying  jib. 
The  schooner  was  pitching  heavily  in  a  head  sea, 
plunging  our  legs  into  the  water  every  time  she 
pitched  forward.  My  wet  feet  slipped  on  the 
foot  ropes,  and  I  caught  the  first  thing  I  could 
get  hold  of ;  it  was  the  iron  band ;  but  hardly 
had  I  grasped  it,  when  she  pitched  aft  and  held 
me  like  a  vice,  taking  off  three  of  my  fingernails, 
besides  jamming  my  fingers  badly.  I  deter- 
mined that  I  would  never  go  out  on  the  jib-boom 
again,  and  I  never  did ;  for  afterwards  when  I 
sailed  in  a  square  rigger  and  the  order  was  given 
to  take  in  the  light  sails,  I  was  always  quick 
enough  to  go  for  a  royal. 

We  arrived  at  Port-au-Prince,  and  there  I  saw 
President  Boyer,  a  short,  copper-colored  man,  of 
the  Napoleonic  type,  review  his  troops,  an  array 
which  put  me  in  mind  of  Falstaff's  ragged  army. 

We  took  in  a  cargo  of  cofPee,  and  when  the 
schooner  was  two  thirds  full,  it  was  observed  by 
the  mate  that  she  was  very  low  in  the  water. 
The  pumps  were  rigged,  and  we  pumped  her 
most  of  the  forenoon.  All  the  coffee  was  wet. 
We  unbent  the  sails  and  carried  them  ashore. 


24  (^r/.s  APE  HIT? 

took  out  the  coffee,  carried  it  ashore,  dried  it, 
and  re-bagged  it.  Upon  examination  of  the 
schooner  by  the  surveyors,  a  rotten  phmk  was 
found  under  the  counter,  ten  inches  square  or 
more,  where  the  water  had  been  pouring  in.  It 
was  not  thought  sufficient  to  cond'emn  her,  and 
we  took  the  coffee  back  to  New  Orleans,  and  the 
owners  or  charterers  sold  it  for  what  it  would 
bring  as  damaged  coffee.  Thus  ended  this  un- 
fortunate voyage.  I  was  thrown  adrift,  in  the 
sj)ring  of  1831,  and  as  many  able  seamen  could 
be  obtained  who  were  willing  to  work  their  pas- 
sage to  go  North,  there  was  no  chance  for  a  boy. 
I  found  a  captain  of  a  schooner  who  was  willing 
to  take  me  to  Boston,  and  trust  to  having  my 
passage  paid  when  I  got  home.  I  do  not  care  to 
say  much  about  my  voyages ;  they  are  more  or 
less  interesting,  some  quite  exciting,  and  on  one 
ship  on  which  I  sailed  a  mutiny  occurred.  I  was 
with  one  captain  who  was  in  the  habit  of  saying 
when  we  got  down  to  Boston  Light,  "  Steward, 
bring  me  a  basin  of  water,  and  let  me  wash  off 
my  Boston  face,  and  get  on  my  sea  one."  I  went 
to  Havana,  the  west  coast  of  Africa,  Smyrna, 
Batavia,  the  Isle  of  Wight,  London,  Amsterdam, 
Gottenburg,  and  Manila,.  On  my  voyage  home 
from  Batavia  I  stopped  at  St.  Helena  and  saw 
Bonaparte's  grave.  One  ship  I  sailed  in  from 
Boston  was  a  Salem  ship,  chartered  by  a  man 


"STALE''    BREAD.  25 

who  was  then  an  eminent  Boston  merchant. 
The  bread  we  ate  was  so  bad,  tliat  after  fully 
soaking  it  in  our  coffee  to  enable  us  to  eat  it, 
there  would  be  an  inch  or  so  of  small  cock- 
roaches, spiders,  etc.,  in  our  coffee  dippers. 
We  took  hold  of  the  bread  barge,  carried  it  to 
the  captain  who  was  then  pacing  the  quarter- 
deck, and  asked  him  if  he  thought  it  was  fit  to 

eat.     He  replied,  "  Yes,  d you,  I  '11  make 

you  eat  it  and  earn  it  too."  We  expected  a 
serious  time,  but  a  little  decisive  action  on  our 
part  brought  him  to  reason  ;  seizing  the  offend- 
ing stuff,  we  hurried  it  to  the  leeside  and  threw 
it  all  overboard  in  his  presence,  thus  losing  our 
bread  for  breakfast ;  shortly  after  we  went  be- 
low all  hands  were  called.  "  Rig  a  tackle  on 
the  mizzen  stay,"  was  the  order.  The  tackle  was 
rigged,  the  mizzen  hatchway  opened,  and  a  hogs- 
head hoisted  out  containing  what  proved  to  be 
excellent  bread  that  we  used  all  the  time  there- 
after. In  the  Eastern  Archipelago  we  spoke  a 
ship  which  hoisted  signals  of  distress.  We  hove 
to,  and  learned  that  they  had  over  one  hundred 
Lascars  on  board,  and  were  short  of  bread,  and 
they  were  given  our  condemned  stuff. 

The  ship's  cousin,  who  had  sailed  in  her  some 
years,  told  me  upon  inquiry  that  the  ship's  owner 
bought  this  bread  in  Boston  at  auction  ;  that  it 
had  been  three  years  in  the  frigate  Potomac  on 


26  QUJS   ArElilTf 

her  last  cruise  to  the  East  Indies,  when,  upon 
her  arrival  at  Boston,  it  was  sold. 

Had  the  owner  taken  a  little  trouble  to  have 
this  bread  baked  over,  all  this  abomination 
would  have  been  destroyed. 

In  1834,  while  waiting  for  a  voyage,  I  wit- 
nessed some  remarkable  trials  in  Boston.  The 
first  was  in  the  old  Court  House,  which  stood 
where  the  City  Hall  stands  now.  It  was  the 
trial  of  a  colored  man  named  Joseph,  and  of  a 
white  man  named  Otis,  for  the  murder  of  Cap- 
tain Crosby  of  the  brig  Juniper,  which  belonged 
to  Winsor  Fay.  She  was  bound  for  Surinam. 
The  mate's  name  was  Eldridge,  and  the  second 
mate's,  James  H.  Peterson. 

When  about  ten  days  out  Peterson,  who  had 
his  watch  on  deck,  while  sitting  on  the  hencoop, 
was  startled  by  a  continued  rapping  below. 
This  he  afterwards  accounted  for  as  the  noise 
made  by  one  end  of  the  bayonet  with  which 
Joseph  was  stabbing  the  mate,  hitting  the  deck. 
Then,  hearing  a  scream,  he  ran  towards  the  cabin 
and  caught  the  captain  as  he  fell  and  died. 
The  mate  ran  up  the  companion  way  with  Joseph 
behind,  stabbing  him  with  the  bayonet.  Peter- 
son, grasping  the  first  thing  within  his  reach, 
which  happened  to  be  a  piece  of  a  royal  yard, 
struck  Joseph  some  blows  over  the  head,  that, 


TWO   REMARKABLE    TRIALS.  27 

however,  had  no  effect.  lie  then  grappled  with 
him.  Meanwhile,  the  man  at  the  wheel  left  the 
helm  and  jumped  into  the  longboat  which  was 
hanging  at  the  stern.  Otis  ran  up  the  forerig- 
ging,  leaving  Joseph  and  Peterson  to  fight  it  out. 
Being  under  no  steerage  way,  the  brig  rolled 
heavily,  while  they  were  fighting  for  their  lives. 
Peterson  told  me  afterwards  that  it  seemed  to 
him  as  though  it  was  an  hour,  but  in  all  prob- 
ability it  was  only  a  few  minutes.  First  one 
would  be  on  top,  then  the  other.  At  last, 
Peterson  fastened  his  teeth  in  his  opponent's 
throat,  and  getting  the  clew  garnet  round  his 
neck,  he  hauled  him  to  the  belaying  pins,  made 
the  rope  fast,  called  the  man  from  the  boat  to 
take  the  helm  again,  brought  a  pistol,  and 
ordered  Otis  to  come  down  ;  he  then  put  them 
both  in  irons,  went  to  the  forecastle  hatch,  got 
the  other  two  men  up,  and  turned  the  brig  for 
Boston.  Otis  and  Joseph  were  convicted,  and 
Joseph  was  hanged ;  but  by  reason  of  certain 
affidavits  procured  by  Father  Taylor,  together 
with  his  own,  Otis  was  pardoned  by  President 
Jackson.  I  talked  with  the  mate  Eldridge,  and 
at  the  trial  he  testified,  as  he  told  me,  that  he 
had  eighteen  stabs.  I  talked  with  Peterson 
about  it  quite  freely,  and  he  narrated  the  circum- 
stances to  me  rather  more  graphically  than  he 
did  upon  the  witness  stand. 


28  aUIS   APERIT1 

The  other  trial  was  at  the  old  Masonic  Temple, 
the  building  now  occupied  by  R.  H.  Stearns  & 
Co.,  on  the  corner  of  Tremont  Street  and  Tem- 
ple Place.  This  was  a  trial  of  twelve  persons 
for  piracy  on  the  high  seas,  and  robbing  and  set- 
ting fire  to  the  brig  Mexican  of  Salem.  Judge 
Story  presided  at  the  trial,  and  Andrew  Dunlap 
was  the  United  States  Attorney.  David  Lee 
Child  and  George  S.  Hillard  were  the  counsel 
for  the  prisoners.  At  the  first  part  of  the  trial 
Mr.  Stephen  Badlam  was  sworn  as  interpreter, 
but  as  Mr.  Child  found  some  fault  with  him, 
Captain  William  N.  Peyton  and  Mr.  Traveres, 
who  I  believe  was  the  Spanish  consul,  were 
sworn  as  assistant  interpreters. 

The  testimony  in  substance  showed  that  the 
Pinda  or  Panda  had  sailed  from  Havana  on  a 
slaving  expedition. 

She  overhauled  the  Mexican,  fired  when 
within  gunshot,  and  the  Mexican  hove  to.  Then 
certain  of  the  crew  of  the  Panda  boarded  the 
Mexican,  took  from  her  all  the  money  they  could 
find,  fastened  the  crew  below,  and  set  fire  to  her. 

The  pirates  had  neglected  to  fasten  the  cabin 
skylight,  so  that  the  crew  of  the  brig  raised  it, 
and  when  they  saw  that  the  slaver  was  at  a  suffi- 
cient distance,  they  put  the  fire  out  and  returned 
home. 

The  slaver  proceeded  to  the. coast  of  Africa, 


PIRACY   ON   THE   lUGlI   SEAS.  29 

and  while  there  the  ojfficers  of  II.  B.  M.'s  man- 
of-war  Curlew  heard  of  the  capture  of  the  Mexi- 
can, and  as  the  Panda  answered  the  description 
of  the  vessel  that  captured  her,  they  took  her 
and  these  men  who  were  on  trial  (but  not 
the  entire  crew)  to  England,  and  then  brought 
them  to  Salem. 

Delgardo  committed  suicide  in  Salem  jail; 
twelve  were  tried,  seven  convicted,  and  five 
acquitted. 

After  the  conviction,  De  Soto,  the  first  mate, 
through  the  intercession  of  Mrs.  David  Lee 
Child,  the  wife  of  the  counsel,  was  pardoned.  A 
strong  point  in  his  favor  was  his  bravery  in  res- 
cuing a  vessel  in  circumstances  of  great  peril, 
with  her  crew  and  passengers  of  women  and 
children,  as  she  lay  aground  on  the  Bahama 
Banks. 

The  others  were  hanged  at  the  Leverett  Street 
jail,  and  many  people  came  in  boats  to  witness 
the  execution,  which  I  also  saw. 

I  give  the  names  of  these  pirates :  Pedro  Gi- 
bert,  captain,  convicted  and  hanged.  Bernardo 
de  Soto,  mate,  pardoned.  Francisco  Ruiz,  car- 
penter, hanged.  Manuel  Boyga,  sailor,  con- 
victed and  hanged.  Manuel  Castillo,  sailor, 
convicted  and  hanged.  Angel  Garcia,  sailor, 
convicted  and  hanged,  Juan  Montenegro, 
sailor,   convicted    and   hanged.      Nicola   Costa, 


30  QUIS   APERIT? 

cabin  boy,  acquitted.  Antonio  Ferrer,  cook, 
acquitted.  Domingo  Guzman,  sailor,  acquitted. 
Juan  Antonio  Portaua,  sailor,  acquitted.  Jose 
Velasques,  sailor,  acquitted. 

Boyga  cut  his  throat,  and  was  hanged  sitting 
in  a  chair  ;  Ruiz  pretended  to  be  insane,  but 
soon  it  was  decided  that  he  was  shamming,  and 
he  was  accordingly  executed. 

While  I  was  on  shore,  after  returning  from 
one  of  my  voyages,  the  ship  lay  at  the  wharf 
waiting  for  a  cargo,  and  the  mate  was  ship- 
keeper.  He  was  a  bluff,  frank  fellow,  but  polite 
when  spoken  to  in  a  proper  manner. 

It  was  the  summer  in  which  Lord  Beresford 
and  the  Marquis  of  Waterford  came  over  from 
Europe  to  \asit  this  country.  Their  yacht  lay 
in  the  stream,  and  their  sailors  pulled  their  boat 
with  those  two  gentlemen  in  it  alongside  of  our 
ship  from  which  they  wei-e  to  land.  I  was  talk- 
ing with  the  mate  as  they  came  on  board,  and 
one  of  them,  whom  we  afterwards  learned  was 
the  Marquis  of  Waterford,  stepped  up  to  the 
mate  and  said  with  the  usual  authoritative  man- 
ner of  a  lordly  John  Bull,  "  I  want  to  find  out 
where  the  English  consul  lives." 

"  The  devil  you  do,"  said  the  mate. 

"Yes,"  said  the  Marquis. 

"  Then  why  in  h — 1  don't  3  ou  find  out  ?  " 


TWO    YEARS   BEFORE    THE   MAST.  ?>1 

"  Do  you  know  who  I  am  ?  "  said  the  Mar- 
quis. 

"No,"  said  the  mate,  "  and  I  don't  care  a  d — ." 

Said  the  Marquis,  "  I  am  the  IVIarquis  of 
Waterford,  and  this  is  my  companion.  Lord 
Beresford." 

Said  the  mate,  "  I  don't  care  a  d —  if  you  are 
the  Duke  of  Wellington." 

Then  Lord  Beresford  said,  in  conciliatory 
tones,  at  last  recognizing  the  American  spirit  of 
equality,  "  Will  you  be  kind  enough  to  tell  me 
where  the  English  consul  lives  ?  " 

"  Yes,  sir,"  said  the  mate,  '"  with  the  greatest 
pleasure  ;  "  and  he  gave  him  the  address. 

When  I  returned  from  my  first  voyage,  I 
found  John  J.  Sawyer,  late  assistant  clerk  of 
the  court  in  Middlesex  County,  and  Richard 
H.  Dana,  jr.,  father  of  the  present  Richard  H. 
Dana,  getting  ready  to  go  to  sea.  Sawyer  went 
many  years,  and,  if  I  remember  correctly,  made 
many  voyages  after  I  became  a  landsman. 

Dana  went  "Two  Years  before  the  Mast/' 
which  was  sufficient  for  him.  From  my  expe- 
rience I  think  his  work  somewhat  exaggerated ; 
and  from  my  acquaintance  with  him  and  his 
surroundings  in  boyhood,  I  am  not  surprised, 
for  there  could  not  have  been  any  greater  con- 
trast than  existed  between  his  life,  up  to  the 
time  he   shipped,   and   the    two   years   he   had 


32  QUIS  APER/Tf 

spent  in  the  forecastle.  I  admit  his  great 
ability  as  an  orator,  but  1  think  that  his 
manners  were  rather  frigid,  and  he  could  not 
let  himself  down  to  the  level  even  of  some  of 
those  of  his  own  rank  in  life. 

I  do  not  know  the  ability  or  character  of  his 
associates  on  his  voyage,  as  to  their  seaman- 
ship, morality,  education,  or  otherwise,  but  this 
I  do  know,  that  about  that  time,  during  eight 
years'  service  on  the  ocean,  I  made  one  voyage 
up  the  Mediterranean,  and  one  to  India  (the 
crew  on  each  voyage  consisting  of  twelve  men, 
besides  boys),  and  that  out  of  those  twelve 
sailors  only  one  was  a  foreigner,  he  being  the 
only  man  who  was  not  perfectly  competent  to 
navigate  a  ship  to  any  part  of  the  globe. 

They  were  more  or  less  educated  men  ;  some 
of  them  had  lost  their  positions  by  dissipation, 
and  others  liked  the  sj)irit  of  adventure  more 
than  the  responsibility  of  command.  In  sub- 
sequent years  I  knew  of  many  who  became  cap- 
tains, resuming  their  former  stations.  When 
I  mention  the  names  of  Phillips  and  Jeffries, 
of  Rhode  Island,  Morrill,  of  Vermont,  Dunning, 
a  graduate  of  Bowdoin  College,  Maine,  Chad- 
wick,  a  graduate  of  Exeter  Academy,  N.  H., 
Mugford.  and  Gerry,  of  Marblehead,  and  Bemis 
and  Bates,  of  Boston,  it  will  be  seen  what  class 
of  men  I  sailed  with  in  the  forecastle. 


A   LITERARY  PROPHECY.  33 

In  18 — ,  there  was  at  the  Bar  a  very  bright 
and  talented  man  by  the  name  of  William  J. 
Snelling,  and  as  dissipated  as  he  was  talented. 
He  was  sent  to  the  house  of  correction,  ,and 
when  he  came  out  he  published  a  book  entitled 
"Six  Months  in  the  House  of  Correction,"  to 
parody  "  Six  Months  in  a  Convent,"  by  Miss 
Read,  an  inmate  of  the  Charlestown  Convent 
at  the  time  it  was  burnt. 

Snelling  also  wrote  an  imitation  of  Pope's 
"  Dunciad,"  a  book  called  "  Truth,  a  Gift  to 
Scribblers "  (which  I  own).  That  amongst 
much  sarcasm  there  were  many  truths  in  it 
there  is  no  doubt,  but  many  persons  were  much 
aggrieved.  His  preface  opens  with  a  dialogue 
between  himself  and  a  friend,  in  which  his 
friend  tells  him  to  beware  the  law  of  libel. 
He  replies :  — 

"  Faith  not  I, 
The  law  and  Mr.  Badlam  ^  I  defy. 
Our  courts  admit  the  truth  in  evidence, 
And  such  an  action  will  be  deemed  a  sham, 
See  J.  N.  Maffit  -  versus  Buckingham."  ^ 

He  prophesied  very  truly  with  regard  to 
Oliver  Wendell  Holmes.     He  says :  — 

"  Give  Holmes  a  ride,  the  Muse's  youngest  son, 
Equaled  by  few,  surpassed  by  none,  not  one ; 
A  dawn  of  worth,  in  whose  meridian  days 
Bryant  with  effort  shall  retain  his  bays." 

1  A  jailer.         -  A  minister.  ^  Editor  of  Galaxy. 


34  QUIS   APERIT? 

In  18  — ,  my  father  became  the  editor  of  the 
"  American  Monthly  lieview,"  which  was  very 
fearless,  "and,"  says  Rev.  Andrew  P.  Peabody, 
"  si^erior  in  merit  to  any  literary  review  that 
has  ever  been  i)ublished  in  this  country,  its 
purpose  being  without  fear  or  favor  to  tell 
the  precise  truth  about  new  books,  as  they  ap- 
peared." It  survived  about  two  years.  Among 
the  contributors  were  Professors  Felton  and 
Peirce,  Messrs.  George  S.  Hillard,  Wendell 
Phillijjs,  and  Charles  Sumner. 

I  remember  one  criticism,  written  by  Pro- 
fessor C.  C.  Felton,  of  a  book  of  poems,  by  the 
soi-disant  Lynn  bard,  Mr.  Alonzo  Lewis. 

One  couplet  ran  thus  :  — 

"  The  moon  is  rising  o'er  the  sea, 
Round  as  the  fruit  of  orange-tree." 

Mr.  Felton  said  it  might  be  as  well,  or  better, 
thus :  — 

"  The  moon  is  rising  o'er  the  brine, 
Roimd  as  the  fruit  of  pumpkin  vine." 

Another  couplet :  — 

"  Great  Washington  and  Chatham  bold. 
Whose  hands  the  reins  of  state  could  hold." 

Mr.  Felton  said  it  was  clearly  a  case  of 
"  va-Tepov  Trporepo)',"  or  the  cart  before  the  horse, 
and  it  would  be  more  properly,  — 

"  Bold  Washington  and  Chatham  great, 
Whose  hands  could  hold  the  reins  of  state." 


AN  ECCENTRIC  POET.  35 

In  1839,  there  came  to  Cambridge  a  rather 
eccentric  j^erson,  named  John  Lee,  a  graduate 
of  Dublin  University. 

He  expected  and  endeavored  to  get  a  profes- 
sorship in  Harvard,  but  failed,  and  on  account 
of  his  singular  habits  and  eccentricities  was 
somewhat  derided. 

My  father  was  the  only  one  who  seemed  to 
tolerate  him,  and  to  whom  he  confided  all  his 
expectations  and  troubles.  My  father  told  me 
that  he  was  a  very  learned  man.  One  night  in 
the  latter  part  of  1839,  our  doorbell  was  rung 
violently. 

I  went  to  the  door  and  picked  up  a  paper 
upon  which  was  written  the  following  :  — 

"  Though  final  fate 
And  Ruin's  weight 
Be  fixed  on  Harvard  College  ! 
Yet,  Willard !  we 
Will  honor  thee 
For  moral  worth,  for  knowledge." 

And   eight   other  verses,  in    one  of    which   he 
prophesied  an  explosion  in  Harvard :  — 

"  And  therefore  when 
Young  '  Etna  Men ' 
Shall  do  as  they  have  planned,  sir ! 
To  '  fire  the  walls 
Of  Harvard  halls, 
And  blow  her  off  the  land,  sir ! ' 

"  May  Mercy  there 
Sustain  thy  prayer, 


36  QUJS    APE  KIT? 

And  Arms  Almig-hty  shield  thee ! 

And  well  worn  days 

In  virtue's  waj's, 

Exempt  from  Sorrow  seal  thee !  " 

We  all  supposed  this  was  from  Lee.  There 
was  a  number  of  other  verses,  but  I  mention 
only  these  as  a  coincidence,  for  shortly  after 
there  was  an  explosion  at  Harvard,  which  broke 
the  windows  and  shattered  the  organ ;  and 
painted  on  a  wall  with  grease  and  lampblack 
were  the  words  :  "  A  bone  for  old  Quin.  to 
pick."     The  guilty  party  was  never  discovered. 

In  1839,  my  father  had  some  large  tracts  of 
land  which  he  wished  to  get  into  the  market, 
and  offered  me  such  inducements  to  remain  on 
shore  and  improve  the  land,  and  also  to  resume 
my  studies  with  him,  that  I  gave  up  my  sea- 
faring career.  This  determined  my  course  of 
life  for  several  years. 

In  1841,  I  married  Penelope  Cochran,  a 
descendant  in  the  fourth  generation  from  Mary 
Faneuil,  daughter  of  Benjamin,  and  niece  of 
Peter  Faneuil.  Our  bridal  trip  was  taken  to 
the  White  Mountains,  at  that  time  more  than  a 
two  days'  journey  by  sea  and  land ;  first  the 
day's  sail  to  Portsmouth  and  Portland  by  two 
steamers,  and  a  stage  drive  to  Fryeburg,  fol- 
lowed by  a  second  stage  to  Fabyan's  the  third 


A   BRIDAL    TRIP.  37 

day.  The  Fabyan  House  was  then  a  small 
affair  in  comparison  with  its  present  huge  pro- 
portions. The  driver  of  the  Fryeburg  stage, 
John  Smith  by  name,  a  noted  whip,  was  a 
friendly  comjiagnon  de  voyage^  always  remem- 
bered by  us  ;  and  some  fifty  years  later,  I  made 
a  special  journey  to  Fryeburg,  Maine,  to  call 
upon  him ;  at  the  age  of  ninety,  he  still  re- 
tained his  memories  of  the  past. 

In  1838,  or  1839, 1  made  the  acquaintance  of  a 
remarkable  young  man  named  Robert  O.  Cooke, 
who,  had  he  lived,  would  have  made  his  mark 
by  his  great  artistic  talent.  He  made  several 
sketches  of  me  which  were  excellent  likenesses, 
and  I  showed  them  to  Mr.  AUston  the  painter, 
who  afterwards  assisted  Cooke  with  his  advice. 
In  this  connection  it  may  be  interesting  to 
mention  the  tradition  that  Mr.  AUston  found 
his  model  for  the  figure  of  Daniel,  in  Bel- 
shazzar's  Feast,  in  the  apparently  unpromising- 
person  of  a  fashionable  draper  and  tailor,  Cor- 
nelius DriscoU  by  name,  whose  shop  stood  near 
the  corner  of  Tudor's  Buildings,  which  stood 
where  Young's  does  now.  As  another  instance 
of  Cooke's  talent  for  portraiture  may  be  men- 
tioned my  recognition  of  the  likeness  of  Gover- 
nor Morton,  whose  face  I  had  only  once  seen,  at 
the  time  of  his  inauguration  in  Representatives 
Hall,   the   day   being   dark,   and   the   distance 


38  QUIS   AFERirf 

across  the  hall  seventy  feet  or  more.  Calling  at 
Cooke's  studio  some  time  after,  I  recognized  at 
once  the  portrait  of  Governor  Morton,  which 
was  considered  so  perfect  a  likeness  that  an 
enoravino;  of  it  was  afterwards  made  for  a 
magazine  called  the  "  Democratic  Review." 

Later,  Cooke  went  to  Paris  for  study,  but 
only  lived  for  a  short  time,  thus  ending  too 
early  a  most  promising  career. 

In  1839  and  1840,  when  I  was  living  on  the 
west  side  of  the  Back  Bay  in  Cambridgeport 
near  the  water,  large  flocks  of  black  ducks, 
during  the  month  of  October,  alighted  in  the 
bay  early  in  the  evening  to  feed  and  rest  for 
the  night,  and  resume  their  passage  south  in 
the  morning. 

I  bought  a  lapstreak  boat  which  two  covdd 
handle,  dug  a  hole  in  the  marsh  so  that  the  boat 
sat  half  way  down  into  it,  then  from  about 
amidships  on  each  side  of  the  bows  I  placed 
small  branches  of  pine  and  cedar,  and  covered 
them  with  seaweed.  I  also  bought  an  old 
Queen's  Arm  gun  of  about  one  inch  and  a  half 
bore,  had  it  stocked,  and  a  percussion  lock  put 
on  in  the  place  of  the  flint-lock. 

I  then  had  a  white  oak  block  with  a  dovetail 
which  entered  the  keelson.  The  block  was 
strapped  with  iron  and  had  an  iron  cylinder  in 
the   middle.      The   gun  was  then  arranged  so 


SHOOTING  BLACK  DUCKS.  39 

that  it  entered  into  the  cylinder,  and  acted  like 
a  swivel.  ' 

I  had  a  tackle  of  a  double  and  single  block, 
which  hooked  into  a  ring  in  the  gTin  and  in  the 
stem  of  the  boat,  to  hold  the  recoil.  It  was 
loaded  with  quarter  of  a  pound  of  powder  and 
three  quarters  of  a  pound  of  duck  shot. 

I  anchored  three  live  decoys  in  front  in  the 
water  within  gunshot,  and  kept  one  in  the  boat 
with  her  legs  and  wings  tied  so  that  I  could 
pinch  her  and  make  her  "  quack,"  when  my 
decoys  in  the  water  would  answer. 

There  was  plenty  of  hay  in  the  boat  to  lie  on, 
and  buffalo  robes  to  cover  me,  and  on  a  still 
moonlight  night  when  the  water  was  smooth  I 
often  caused  great  slaughter,  one  evening  killing 
sixteen  with  one  shot. 

William  Sohier,  Esq.,  was  a  frequent  com- 
panion with  me  in  these  nocturnal  excursions, 
and  after  shooting  we  would  launch  the  boat 
and  pick  up  the  ducks. 

In  1840,  I  voted  for  General  Harrison  for 
President,  and  for  John  Tyler  for  Vice-Presi- 
dent. The  watchwords  of  the  Whig  Party 
were  "  Tippecanoe  and  Tyler  too."  Log  cabins 
were  built  in  various  localities,  and  hard  cider 
kept  in  them,  and  they  were  open  day  and 
night.  I  remember  one  large  one  built  of 
spruce  logs  on  Charles  Street.      On  a  certain 


40  QUIS   APER/T? 

day  there  was  a  large  gathering  of  persons  at 
Lexington  and  Concord.  A  huge  ball  twenty 
feet  high  was  hauled  to  Lexington  by  two  hun- 
dred men.  The  ball  was  painted  with  stars  and 
stripes,  and  the  motto  was,  "Keep  the  ball 
rolling." 

Addresses  were  made  at  Concord  by  George 
Evans,  of  Maine,  General  Wilson,  of  Keene, 
who  had  been  much  in  the  West,  and  others. 
After  the  election  of  Harrison,  the  campaign  at 
Cambridge  was  celebrated.  A  large  number  of 
persons  gathered  at  Porter's  tavern,  where  it 
still  stands,  at  North  Cambridge  ;  Daniel  Web- 
ster and  William  J.  Graves  were  present.  Mr. 
Graves  was  the  representative  in  Congress  from 
Kentucky,  who  shot  Representative  Cilley  from 
Maine,  in  a  duel  with  rifles  at  Washington. 
They  were  all  merry  with  champagne,  which 
flowed  freely  during  the  meeting. 

I  was  always  fond  of  any  theatre  where  there 
was  good  acting  ;  and  in  the  palmy  days  of  the 
old  Tremont,  when  I  was  deputy  sheriff,  I  had 
free  entrance.  A  friend  passed  me  into  the 
National,  where  Mr.  Pelby  was  manager,  and 
also  into  Bland's,  on  Sudbury  Street.  I  am  of 
the  opinion  that  each  member  of  the  stock  com- 
pany at  those  theatres  then  would  be  a  star 
to-day.  At  the  Tremont  were  William  H. 
Smith,    Murdoch,    George    Barrett    and    wife, 


OLD   BOSTON   THEATRES.  41 

Henry  J.  Finn,  George  H.  Andrews,  Kline, 
Hield,  William  F.  Johnson,  an  inimitable  old 
gentleman,  Thomas  Barry  the  manager,  his  first 
wife,  and  John  Gilbert  and  Mrs.  Campbell,  who 
afterwards  became  Mrs.  Gilbert.  William  H. 
Smith  was  the  best  general  stock  actor  and  the 
most  useful  one,  I  think,  who  was  ever  on  the 
Boston  stage.  Later  he  was  at  the  Boston 
Museum.  His  parts  were  always  the  second 
parts,  exceedingly  well  done,  and  it  may  well  be 
said  of  him,  "  Nil  tetigit,  quod  non  ornavit.^^ 

The,  elder  Booth  and  Forrest  frequently 
played  then,  and  the  rarest  treat  I  ever  had  was 
to  see  Forrest  as  Othello,  and  Booth  as  lago, 
the  characters  reversed  the  next  night. 

Forrest's  Richelieu  was  sublime,  and  I  was 
told  by  Mr.  Dixon,  who  was  a  leading  actor  at 
the  old  Federal  Street  theatre,  that  it  was  the 
most  striking  performance  of  this  part  which  he 
ever  witnessed. 

At  the  National  were  William  Rufus  Blake, 
Fred.  S.  Hill,  Joseph  S.  Jones  (afterwards  Dr. 
J.  S.  Jones),  Palmer,  William  Pelby  and  daugh- 
ter, and  Williams,  an  excellent  old  man. 

After  Blake  went  to  New  York,  he  visited 
Boston  occasionally,  and  played  Sir  Harcourt, 
in  "  London  Assurance."  John  Gilbert  at- 
tempted it  after  him  ;  and  although  Gilbert  was 
unsurpassed    in  certain    parts,  his  playing    Sir 


42  QUIS  APEEITf 

Harcourt  so  soon  after  Blake  was  injudicious, 
and  called  forth  strong  marks  of  disapproval. 

One  evening  at  the  National,  Blake,  who  was 
cast  for  Roderick  Dhu,  was  late  ;  the  curtain 
went  up  and  down  every  few  minutes,  and  Mr. 
Pelby  came  forward  to  excuse  Blake.  The  cat- 
calls, whistles,  etc.,  were  loud  and  persistent. 
After  half  an  hour,  Blake  came  forward.  He 
was  greeted  with  hisses.  He  folded  his  arms, 
and  stood  silent  until  the  noise  subsided ;  then 
said  in  his  most  impressive  manner,  "  Ladies  and 
gentlemen,  whom  have  I  offended?"  "Hurrah 
for  Blake,"  was  the  cry,  and,  the  excuse  being 
given,  the  play  proceeded.  Edward  and  James 
Riddle,  auctioneers,  brothers  of  Mrs.  William 
H.  Smith,  occasionally  appeared  at  her  benefit 
and  played  the  flute.  At  the  time  of  the  per- 
formance by  Ellen  Tree  of  Julia,  in  "  The 
Hunchback,"  there  were  certain  marked  phrases 
which  every  one  knew.  Riddle  was  once  selling 
at  auction,  when  a  person  bid  off  an  article. 
"  Whose  is  it  ?  "  said  Riddle.  "  Clifford's,"  said 
the  purchaser.  Riddle,  striking  an  attitude, 
"Ah,  Clifford,  is  it  you?"  Clifford,  being  a 
bashful  man,  retreated,  but  Riddle  saw  him, 
and  in  piteous  tones  said,  "  Clifford,  Clifford, 
why  don't  you  speuh  to  me  ?  "  The  audience 
shouted,  and  it  was  some  minutes  before  the  sale 
went  on. 


AN   EXCITING    CONTEST.  43 

I  was  present  one  night  at  the  performance  of 
"Richard  the  Third"  when  J.  B.  Booth  was 
so  excited  in  the  contest  between  Richard  and 
Richmond  that  he  pursued  Smith  with  great 
fury,  and  had  not  Smith  been  an  excellent  fencer 
Booth  would  have  killed  him.  The  audience  in 
the  pit  rose  en  masse,  standing  on  the  seats,  and 
there  was  great  excitement.  Smith  called  to 
him,  "  Booth,  Booth."  Pie  paid  no  attention. 
So  Smith  fought  for  liis  life,  and  during  a  pause, 
both  being  quiet,  and  on  their  guard.  Smith  ran 
his  sword  against  that  of  Booth,  seized  the  lat- 
ter's  sword  arm  with  his  left  hand,  and  recalled 
him  to  his  senses,  Booth  playing  the  dying 
scene  with  astonishing  effect.  I  have  seen  it 
stated  that  he  drove  Smith  out  of  the  theatre ; 
while  on  the  other  hand  I  remember  hearing 
Smith,  when  relating  the  occurrence  some  time 
afterwards  at  Bascom's,  a  well-kno\vn  resort  of 
actors  in  School  Street  where  Parker's  Hotel 
now  stands,  assert  that  he  had  disarmed  Booth. 
But  the  above  is  the  true  account. 

A  friend  of  mine  once  appeared  on  the  stage 
when  George  Barrett  was  manager.  He  came 
from  the  country,  but  was  a  fair  reader,  although 
not  an  educated  man.  At  rehearsal  the  ques- 
tion was  asked  him,  "How  far  is  it  to ?  " 

Answer,  "  About  as  far  as  yonder  housen  ; " 
the  manner  in  the  country  at  that  time  of  call- 


44  aUIS   APERITf 

ing  a  number  of  houses.  He  told  me  that  Bar- 
rett drew  himself  up  to  his  full  height  (and  his 
height  was  six  feet),  and  shouted  to  him : 
"  Housen  ?    Houses,  you  mean." 

In  the  early  days  of  the  old  Tremont  figured 
Henry  J.  Finn  and  George  H.  Andrews,  both 
comedians.  Finn's  best  performances  were 
Philip  Garbois,  in  "  101,"  and  Maw-worm,  in 
the  "  Hypocrite."  Andrews's  best  was  "  Luke 
the  Laborer." 

Occasionally  I  attended  amateur  performances 
in  Flagg  Alley,  now  called  by  its  modernized 
name  of  'Change  Avenue.  Finn  was  a  great 
punster,  and  was  in  the  habit  of  making  puns 
every  time  he  appeared.  When  he  had  a  bene- 
fit they  came  out  by  the  dozen,  and  the  newspa- 
pers used  to  publish  Finn's  last.  He  also  wrote 
comic  Annuals.  Snelling  says,  in  speaking  of 
him:  — 

"  Puns  premeditated,  set  to  time, 
And  strung  like  onions  on  a  rope  in  rhyme, 
Though  puffed  by  all  the  editorial  crew, 
And  sung  by  Harry  Finn  will  never  do  ; 
Straight  in  the  fire,  good  Finn,  thine  Annual  cast. 
Let  this  emphatically  be  thy  '  Last.'  " 

At  his  benefit,  I  remember  this  one  in  par- 
ticular :  — 

"  If  I  were  jownished  for  every  pun  I  shed, 
I  should  n't  have  apu7ij  shed 
Wherein  to  hide  myj9M7iished  head." 


ON  SATURDAY  EVENJNGS.  45 

Some  time  in  the  forties,  the  old  Federal  Street 
theatre  was  temporarily  occupied  by  Abner 
Kneeland,  a  celebrated  preacher,  who  would 
now  be  called  an  agnostic.  I  went  to  hear  him 
one  night,  and  I  well  recollect  the  motto  he  had 
placed  over  the  stage  :  "  He  who  cannot  reason 
is  a  fool.  He  who  will  not  reason  is  a  bigot. 
He  who  dares  not  reason  is  a  slave."  This 
theatre  was  opened  again  as  a  theatre  between 
1846  and  1850. 

On  Saturday  evenings  during  these  years,  I 
was  accustomed  to  go  with  my  father  to  the 
house  of  Mr.  Edmund  T.  Dana.  Mr.  AUston, 
the  artist  and  poet,  Mr.  Knapp,  a  Boston  lawyer, 
and  Mr.  Horatio  Gi'eenough,  the  sculptor,  were 
often  there,  and  it  was  a  great  pleasure  to  listen 
to  Mr.  Allston  relating  in  his  dreamy  way  his 
experiences  abroad  ;  and  I  have  often  wished 
since  that  I  had  kept  a  diary. 

They  were  all  smokers,  and  each  took  his 
glass  of  wine  with  crackers  and  cheese.  Con- 
versation lasted  till  ten,  and  then  the  party 
broke  up. 

In  the  autumn  of  1852  occurred  the  death 
of  Daniel  Webster.  I  well  remember  hearing 
many  of  his  speeches  in  Faneuil  Hall,  being 
often  taken  off  my  feet  in  the  great  crowd  that 


46  QUJS   APE  JUT? 

surged  in  to  listen.  On  one  occasion  he  spoke 
from  a  barouche  in  front  of  the  United  States 
Hotel,  where  I  listened  from  a  prominent  but 
insecure  position  on  the  forward  wheel. 

His  funeral  in  Marshfield  brought  a  multitude 
from  far  and  near.  My  friend  Mr.  George  C. 
Wilde,  clerk  of  the  Supreme  Court,  and  myself, 
went  together  to  pay  our  last  tribute  of  resjject 
to  the  great  man. 

Starting  on  the  day  previous  to  the  funeral, 
a  five  hours'  drive  brought  us  to  the  pleasant  old 
town  of  Marshfield,  where  we  passed  the  night 
at  the  house  of  a  hospitable  citizen,  Mr.  Packard, 
a  selectman  of  the  town,  and  most  kind  in  re- 
ceiving us  who  were  total  strangers  "  without 
money  and  without  price." 

Many  of  our  fellow-travelers  were  less  fortu- 
nate, and  passed  the  night  where  they  could  in 
barns,  wagons,  and  on  beds  of  hay  ;  but  the  mild 
weather  made  it  all  possible.  The  next  morning 
we  walked  over  to  Mr.  Webster's  house,  where 
the  crowd  was  gathering,  and  in  the  house  were 
many  noted  men,  —  George  T.  Curtis,  William 
Dehon,  Francis  Tukey,  chief  of  police,  etc. 
Mr.  Webster  lay  at  rest  in  the  great  library ; 
his  dress  a  blue  coat  with  brass  buttons,  black 
trousers,  and  patent  leather  shoes. 

Before  the  services,  we  walked  over  to  the 
family  tomb,  and  when  we  returned  the  crowd 


FUNERAL    OF   DANIEL    WEBSTER.  47 

of  people  had  become  so  great  that  passage 
through  was  ahnost  impossible. 

Several  hundred  people  who  had  come  by  boat 
to  attend  the  funeral  were  unable  to  land,  the 
steamer  having  grounded  on  the  flats,  and  they 
were  obliged  to  return  to  town  without  having 
had  any  part  in  the  ceremonies.  Our  own  time 
was  too  limited  to  allow  us  to  stay  through  the 
services,  and  we  were  forced  to  come  away  early. 
On  our  way  back,  we  met  our  kind  host,  Mr. 
Packard,  on  his  way  to  the  funeral,  who  again 
offered  us  his  hospitality,  giving  us  the  key  of 
his  house,  and  the  liberty  of  entering  and  mak- 
ing ourselves  comfortable  ere  we  started  on  our 
homeward  way. 

About  the  year  1856,  finding  my  health  some- 
what impaired,  I  decided  to  renew  my  old  exer- 
cise of  horseback  riding,  and  while  debating 
where  to  buy  a  horse,  a  friend  unexpectedly 
offered  me  the  use  of  his  for  a  year. 

The  following  year,  I  again  enjoyed  the  use  of 
a  horse  for  a  mountain  tour  through  the  friendly 
offer  of  Asa  T,  Barron,  proprietor  of  the  White 
River  Junction  Hotel ;  a  man  under  obligations 
to  me  for  some  past  services.  He  invited  my 
friend  Francis  M.  Adams  and  myself  to  his 
house,  and  pro\dded  us  with  two  good  saddle- 
horses,  for  our  unlimited  use.  Mr.  Adams  and  I 
made  a  tour  of  the  surrounding  country,  lasting 


48  QUIS    APERJTf 

a  week  or  ten  days,  visiting  Royalton,  Barre, 
Watei'bury,  and  Burlington  by  the  way  of  Mt. 
Mansfield.  Our  passage  over  the  mountain  was 
very  rough  and  dangerous,  and  but  for  the  com- 
pass that  Mr.  Adams  happened  to  have  in  his 
pocket,  I  think  we  should  have  been  lost.  As 
it  was,  we  arrived  at  night  at  Underhill,  much 
exhausted,  very  muddy  and  hungry,  having 
fasted  all  day. 

The   first   person  we   met,  a  man  chopping 

wood,  hailed  us  with  "  Where  in did  you 

come  from?  " 

Hearing  that  we  had  come  over  Mt.  Mans- 
field, he  added  in  the  same  emphatic  language : 
"  The  devil  you  did  ;  I  would  not  do  it  for  the 
best  horse  in  Vermont." 

We  were  kindly  cared  for  that  night  by  the 
clergyman  at  Underhill,  and  the  next  day 
reached  Burlington,  returning  to  White  River 
Junction  by  Whitehall  and  the  lake. 

Soon  after  my  return,  I  bought  a  horse,  and 
have  never  since  been  without  one. 

On  the  25th  of  August,  1867,  I  left  Portland, 
Maine,  with  my  son,  each  of  us  on  horseback. 
We  were  gone  sixteen  days  and  a  half,  traveled 
486  miles,  went  through  and  across  four  States, 
and  through  sixty -nine  towns.  When  we  arrived 
opposite  White  River  Junction,  as  there  was  no 
bridge  over  the  river  at  that  time,  we  forded 


HORSEBACK   RIDING.  49 

the  stream,  the  water  being  up  to  our  horses' 
knees. 

After  dinner,  we  thought  we  woukl  look  over 
the  grounds  of  Dartmouth  College.  Just  below 
the  place  where  we  forded,  where  the  White 
River  and  the  Connecticut  join,  there  was  a 
bridge  over  the  Connecticut.  We  entered  the 
ford  at  the  same  time,  and  very  quickly  I  found 
that  my  horse  was  swimming. 

I  called  to  my  son,  who  was  below  me,  and 
said,  "  Our  horses  are  swimming ;  head  your 
horse  up-stream,  or  you  '11  be  swept  into  the 
Connecticut."  He  did  so,  but  the  current  was 
so  strong  that  he  was  carried  down  some  yards, 
and  just  saved  himself  by  bringing  up  against 
the  abutments  of  the  bridge. 

When  we  were  safe  on  the  other  side,  the  toll- 
man shouted  to  us,  "  How  dare  you  attempt  to 
cross  the  river  ?  "  I  replied,  "  When  we  came 
over  this  morning  the  water  was  only  up  to  our 
horses'  knees."  He  said,  "  Don't  you  know  how 
rapidly  the  river  rises,  when  there  are  rains 
above  ?  This  river  has  risen  four  feet  since  morn- 
ing." We  continued  our  journey,  and  on  arriv- 
ing at  Waterbury,  Vermont,  I  found  my  wife 
there,  and  the  next  day  we  started  to  ascend 
Mt.  Mansfield.  My  son  and  I  went  on  horse- 
back, and  a  farmer  took  my  wife  in  a  wagon  as 
far  as  the  half-way  house.  There  she  mounted 
my  horse,  and  I  walked  by  her  side. 


50  QUIS   APE  It  IT? 

After  proceeding  a  few  minutes,  we  came  to 
what  I  thought  was  rather  a  dangerous  place, 
and  we  stopped  to  take  an  observation. 

Within  hailing  distance  we  saw  a  man  coming 
down  the  mountain  with  a  dozen  or  more  mules, 
returning  from  having  taken  a  party  up.  See- 
ing us  there  he  called  out,  "  Do  you  wish  any 
help?"  I  replied,  "I  don't  know.  If  you  say 
so,  I  '11  take  it ;  if  not,  I  '11  go  on."  "  I  think 
you  have  got  over  the  worst  of  it,"  he  said.  We 
started  on.  My  wife's  horse  had  got  a  footing 
with  her  fore  foot,  but  in  attempting  to  get  a 
footing  with  her  hind  foot,  she  slijiped  back  on 
her  haunches ;  my  wife  fell  off,  and  the  horse 
rolled  over  her,  bringing  up  against  a  big  log. 
We  picked  her  up  insensible,  carried  her  to  a 
bright,  sunny  spot,  and  laid  her  down.  We 
then  secured  the  horses,  and  I  told  the  farmer 
who  had  offered  us  his  assistance  to'  go  up  to 
the  top  of  the  mountain  and  bring  us  some 
brandy  as  quickly  as  he  could.  While  he  was 
gone  I  stayed  with  my  wife,  who  had  become  de- 
lirious, and  had  a  very  bad  cut  underneath  her 
chin,  from  which  the  blood  flowed  freely.  By 
the  time  the  farmer  returned  I  had  stanched 
the  wound  with  my  handkerchief  ;  I  gave  her 
the  brandy,  which  revived  her  somewhat,  and  we 
carried  her  down  the  mountain  to  the  half-way 
house  where  the  farmer's  wagon  was  waiting, 


A   SERIOUS   ACCIDENT.  51 

and  thus  proceeded  to  his  house.  I  telegraphed 
to  my  son-in-law  to  come  vip  and  take  my  wife 
home,  and  finding  that  he  could  do  so,  my  son 
and  I  returned  with  the  horses. 

After  our  arrival  our  family  physician,  Dr. 
Wyman,  being  absent,  we  called  in  another 
doctor,  who  found  that  two  ribs  had  been  broken. 
Later,  when  Dr.  Wyman  returned,  he  discovered 
a  dislocated  shoulder  also ;  fortunately,  no  more 
serious  result  ensued  from  this  careless  over- 
sight and  delay.  As  the  blood  of  the  martyrs  is 
the  seed  of  the  church,  so  in  this  case  a  good 
road  was  built  to  the  summit  the  next  year. 

In  1869,  my  son  and  I  took  another  horse- 
back ride  in  which  we  went  through  forty-eight 
towns  in  Massachusetts,  Vermont,  and  New 
Hampshire.  We  were  out  seventeen  days,  and 
traveled  448  miles. 

At  many  places  where  we  stopped  there  was 
no  hotel,  and  we  had  to  resort  to  farmhouses. 
I  remember  one  day,  as  we  arrived  about  noon 
at  Corinth,  Vermont,  we  found  no  tavern.  We 
came  to  a  well-to-do  farmhouse,  and  saw  a 
pleasant-looking  farmer  sitting  on  the  doorstep. 
I  asked  him  if  he  coidd  give  us  some  dinner. 
"  No,  I  can't  give  you  any  dinner,"  he  said.  I 
said,  "Can  you  give  us  something  to  eat?" 
"  Oh,  yes,"  he  said,  "  plenty   of    it ;  put   your 


52  aUIS  APERfT? 

horses  in  the  barn,  help  yourselves,  and  if  you 
don't  give  them  enough  it  won't  be  my  fault." 
He  showed  us  about  the  farm,  and  then  said, 
"  Let 's  go  in,  and  get  a  bite."  The  table  was 
set  in  perfect  order,  and  we  had  an  excellent 
dinner,  consisting  of  a  roast  leg  of  mutton  and 
all  the  vegetables  of  the  season.  When  we 
finished,  he  whispered  in  my  ear,  "  Now  I  want 
you  to  go  down  with  me  in  my  cellar,  and  taste 
a  little  of  my  cider  brandy." 

I  found  it  so  potent  that  I  only  took  a  small 
quantity,  and  returning  upstairs  asked  him  how 
much  there  was  to  pay.  "  Nothing,"  he  said. 
I  told  him  we  were  riding  for  pleasure,  and 
did  n't  go  about  begging  dinners,  and  insisted 
that  he  should  take  something.  To  which  he 
replied  that  if  he  must  take  something,  it  would 
be  only  a  dollar.  When  I  asked  him  where  we 
should  stop  for  the  night,  he  named  the  place, 
and  told  me  that  I  should  find  a  very  singular 
person  there  who  was  the  postmaster.  When 
we  arrived  I  found  the  postmaster,  and  asked 
him  if  he  would  take  us  in  for  the  night.  He 
looked  us  over  and  said,  "  Have  you  got  any 
money?  "  I  said,  "  A  little."  "  Where  do  you 
come  from  ?  "  "  From  Boston,  and  traveling 
through  the  country."  After  taking  another 
view  of  us  he  said,  "  I  am  afraid  of  horses ;  will 
you  take  care   of   your  own  ? "     "  Oh,  yes,"  I 


RURAL   HOSPITALITY.  53 

said ;  "  and  now  I  want  to  ask  you  one  or  two 
questions.  Have  you  any  oats  ? "  This  was 
always  my  first  inquiry  on  arriving  at  any  place. 
"  Yes,"  he  said,  "  help  yourselves."  So  we 
stayed,  and  the  charge  for  two  horses  and  two 
men  was  one  dollar  for  supper,  breakfast,  and 
lodging. 


II. 

CURIA. 

In  the  year  1846  I  began  my  duties  in  the 
Court  of  Common  Pleas  as  an  assistant  to 
Joseph  Willard,  Esq.,  Clerk  of  the  Court,  also 
my  uncle  and  good  friend.  My  position,  taken 
at  first  for  a  week  only  as  temporary  clerk,  soon 
became  permanent  through  the  resignation  of 
Mr.  McLellan,  one  of  the  older  clerks,  and  from 
then  began  my  long  service,  now  rapidly  round- 
ing to  fifty  years. 

The  judges  of  the  Supreme  Court  at  that 
time  were  Lemuel  Shaw,  Chief  Justice ;  Samuel 
S.  Wilde,  Samuel  Hubbard,  and  Charles  A. 
Dewey,  Associate  Justices. 

The  justices  of  the  Court  of  Common  Pleas, 
just  previous  to  my  entering  the  office,  had  re- 
signed because  of  insufficient  salary.  They  were 
John  M.  Williams,  Chief  Justice,  and  Associate 

Justices,  Charles   H.  Warren,  Cummins, 

and  others  whose  names  I  do  not  recall. 

A  number  of  other  justices  were  appointed  to 
the  Court  of  Common  Pleas  while  I  was  con- 
nected with  it ;  Edward  Mellen,  Chief  Justice, 
and    Horatio    Byington,   Jonatlian   C.   Perkins, 


COURT   OF   COMMON  PLEAS.  55 

George  N.  Biiggs,  E.  Rockwood  Hoar,  and 
Henry  W.  Bishop,  Associate  Justices. 

The  new  bench  had  been  appointed,  consisting 
of  Daniel  Wells,  Chief  Justice  ;  Pliny  Merrick, 
Emory  Washburn,  Joshua  H.  Ward,  Luther 
S.  Gushing,  and  H.  G.  O.  Colby,  Associate 
Justices. 

Three  persons  did  all  the  work  of  the  clerk's 
office  at  that  time,  where  there  are  now  seventeen. 
In  a  short  time  I  became  familiar  with  the  rules 
of  the  Court,  and  made  the  acquaintance  of  the 
elder  lawyers.  The  principal  practicing  lawyers 
then  were  Sidney  Bartlett,  J.  L.  English,  Soliier 
and  Welch,  Hutchins  and  Wheeler,  Augustus 
H.  Eiske,  Charles  H.  Warren,  Benjamin  Rand, 
—  these  last  three  comprising  the  firm  of  Rand, 
Warren,  and  Fiske,  —  John  C.  Park,  Tolman 
Willey,  William  B.  Dorr,  David  S.  Greenough, 
Benjamin  R.,  Charles  P.,  and  George  T.  Curtis, 
Charles  G.  Loring,  George  William  Phillips, 
Theophilus  P.  and  Peleg  W.  Chandler,  Whiting 
and  Russell,  Charles  T.  and  Thomas  H.  Russell, 
and  many  others.  In  1894,  at  the  time  of 
writing  this,  the  only  surviving  members  of  the 
bar  who  were  in  practice  when  I  entered  the 
clerk's  office  in  1 846  are  the  following :  Alex- 
ander S.  Wheeler,  Charles  A.  Welch,  William 
G.  Russell,  Charles  T.  Russell,  Thomas  H.  Rus- 
sell, Thomas  S.  Harlow,  Caleb  William  Loring, 


56  CURIA. 

Alexander  C.  Washburn,  and  Fred.  O  Prince. 
Benjamin  H.  Currier,  just  deceased  at  ninety- 
five  years  of  age,  the  oldest  member  of  the  bar, 
was  admitted  in  1853,  and  at  the  time  I  entered 
the  clerk's  office  was  head  clerk  for  Mr.  George 
C.  Wilde,  Clerk  of  the  Supreme  Judicial  Court. 
I  was  admitted  in  1854. 

Thomas  W.  Phillips,  brother  of  Wendell  and 
of  George  W.,  was  Clerk  of  the  Criminal  Court, 
and  Thomas  Power,  Clerk  of  what  was  then 
called  the  Justices'  Court.  Isaac  O.  Barnes 
was  United  States  Marshal.  John  G.  Rogers 
was  Chief  Justice  of  the  Police  Court,  now 
called  the  Mmiicipal  Court  of  the  City  of  Bos- 
ton, when  I  first  went  into  the  office.  One  day 
an  Indian  was  brought  up  before  him  and  fined 
for  being  drunk.  After  he  had  paid  the  fine, 
Mr.  Power,  the  clerk,  told  him  to  go,  as  he  was 
discharged ;  but  the  Indian  said  he  wanted  a 
receipt.  Mr.  Power  repeated  to  him  that  there 
was  nothing  to  do  but  to  go,  and  still  he  per- 
sisted that  he  must  have  a  receipt.  Then  Judge 
Rogers  asked  him  why  he  was  so  anxious  for 
a  receipt  when  he  was  discharged.  And  this 
was  his  reply :  "  By  and  by  Indian  die ;  go  to 
Great  Spirit ;  he  say,  '  What  you  come  here 
for?  Can't  come  in,  been  drunk.'  'Yes,'  say 
Indian,  'but  I  pay  fuie.'  Great  Spirit  say, 
'  Where  's  your  receipt  ? '     Then  Indian  have  to 


FINES   AND   FEES.  67 

go  all  over  hell  to  limit  up  Judge  Rogers  to  get 
receipt." 

At  or  about  1851,  the  Legislature  enacted  a 
law  allowing  parties  to  be  witnesses.  At  the 
present  .time,  1894,  it  seems  strange  to  look 
back,  and  see  how  well  cases  were  tried  with- 
out the  testimony  of  either  party. 

One  of  the  first  actions  brought  to  my  atten- 
tion, and  which  my  familiarity  with  the  rules 
helped  to  settle,  was  this :  A  certain  rule  of 
the  Court  of  Common  Pleas  (and  which  now 
exists)  provided,  that  when  a  party  had  neg- 
lected, after  six  months,  to  complete  a  judg- 
ment, rendered  in  an  action,  on  petition  to 
complete  the  record  (if  the  adverse  party  in- 
tended to  answer  thereto),  the  petitioner  was  to 
pay  the  respondent  costs.  At  that  time  the 
costs  of  attendance  (which  are  now  termed  fees) 
were  thirty-three  cents  a  day  for  every  day  the 
action  remained  open.     A  petition  was  brought 

by  Mr.  P to  complete  the  record  against 

a  certain  party.  Samuel  D.  Parker,  Esq.,  ap- 
peared for  the  respondent.     The  case  had  been 

pending  a  number  of  years.     Mr.  P came 

and  asked  me  to  tax  the  costs  for  him  in  the  case. 

He  said,  "  Mr.  Parker  has  offered  me  |125 
as  costs,  but  I  think  the  costs  must  be  very 
much  more."  I  said,  "  Mr.  P ,  the  rule  pro- 
vides that  the  adverse  party  shall  recover  costs  ; 


58  CURIA. 

that  is,  that  you  shall  pay  him  his  costs  if  he 
attends,  and  Mr.  Parker  has  attended  all  the 
time,  so  that  he  will  be  entitled  under  the  rule 
to  his  costs,  and  you  will  have  none."  "  Know- 
ledge is  power,"  said  Mr.  P ,  "  and  I  will 

take  the  $125."  This  was  my  first  advice  as 
a  layman  to  a  practicing  lawyer,  which  he  fol- 
lowed. 

Talking  with  Mr.  Thomas  W.  Phillips,  I  was 
told  this  excellent  story  of  John  Sullivan,  a 
former  member  of  the  bar.  He  was  known 
to  be  an  excellent  singer  and  mimic,  and  on 
account  of  these  talents  was  invited  to  a  great 
many  parties.  However,  his  friends,  believing 
he  was  getting  too  convivial  and  spending  too 
much  money,  had  a  '-guardian  appointed.  The 
guardian  tried  to  get  an  interview  with  him,  but 
every  time  that  Sullivan  saw  him,  he  would 
dodge  away  from  him  ;  at  last  they  met  where 
Sullivan  could  not  get  away.  "Now,  John," 
said  the  guardian,  "  I  am  in  earnest ;  I  shall 
not  cut  down  your  allowance.  Your  friends 
think  that  you  are  getting  rid  of  your  money  a 
little  too  fast,  but  I  shall  be  liberal  with  you ; 
you  may  sing  as  much  as  you  wish ;  there  is  one 
thing,  however,  yoii  must  stop,  and  that  is  this 
mimicry,  because  it  is  making  you  a  great  many 
enemies ;  but  \_sotto  voce~\  before  you  stop,  John, 
give  us  my  friend  Parsons  once  more." 


CARE    OF   ORIGINAL    PAPERS.  59 

I  learned  one  thing  quite  early  concerning 
the  production  of  original  papers  or  dockets 
from  the  clerk's  office  to  other  courts,  in  this 
manner :  after  I  had  been  in  the  office  about  a 
year,  Sidney  Bartlett,  Esq.,  came  in  one  day,  and 
said,  "Mr.  Willard,  I  should  like  to  have  you 

take  the  writ  and  paj)ers  in  the  case  of vs. 

into  the  Supreme  Court  this  morning,"     I 

took  the  papers  into  the  Supreme  Court,  went 
on  to  the  witness  stand,  and  read  from  them 
such  portions  as  Mr.  Bartlett  desired.  Mr. 
Bartlett  then  said,  "  You  will  leave  these  papers 
with  the  clerk  of  this  court,  and  I  will  see  them 
returned."  I  was  not  at  all  sure  about  that, 
and  looked  around  inquiringly  to  Chief  Justice 
Shaw,  who  was  on  the  bench. 

The  chief  justice  remarked,  "  No,  sir,  he  has 
done  wrotig  to  bring  them  in  here  ;  you  should 
have  had  copies,  Mr.  Bartlett.^' 

In  later  days,  when  I  have  been  summoned 
to  different  courts  to  produce  original  papers, 
I  have  always  refused,  and  have  always  been 
sustained  by  the  court.  I  am  often  surprised  at 
this  day  to  see  original  deeds  and  records  from 
registries  brought  into  the  courts,  and  I  regard 
it  as  a  very  dangerous  practice.  I  remember 
being  summoned  before  Judge  Lowell  at  the 
United  States  Court,  to  produce  original  papers 
from  the  Superior  Court.      I  went  and  said  to 


60  CURIA. 

the  judge  that  I  had  come  to  obey  his  sum- 
mons, but  that  I  declined  to  produce  the  papers ; 
and  he  said  to  the  counsel,  "  I  cannot  compel 
Mr.  Willard  to  produce  original  papers  here." 

During  the  remainder  of  the  year  1846,  and 
the  beginning  of  1847,  my  salary  was  very 
small,  and  in  my  extra  hours  out  of  the  office  I 
wrote  for  many  lawyers.  Generally  I  was  well 
paid.  Once,  however,  I  was  asked  by  Mr.  B. 
F.  Hallett  to  make  a  copy  of  a  deed  conveying 
some  property  to  a  church,  and  Mr.  Hallett 
said  he  wanted  it  written  in  a  plain,  clear,  round 
hand,  space  being  no  object.  The  person  for 
whom  I  was  to  make  it  was  supposed  to  be  the 
richest  man  in  Boston  at  that  time.  When  it 
was  done,  I  carried  it  to  Mr.  Hallett,  and  his 
client  was  present. 

The  client  examined  it  and  said  he  thought  I 
had  extended  it  too  far  in  order  to  make  a  long 
job  of  it,  and  asked  me  how  much  it  was.  I 
named  the  price.  He  offered  me  about  half.  I 
told  him  he  might  have  it  for  nothing.  Then 
Mr.  Hallett  told  him  that  he  had  instructed 
me  to  write  it  in  that  manner,  and  that  I  ought 
to  be  paid  for  it  accordingly ;  this  brought  him 
somewhat  to  his  senses,  and  he  paid  it,  appar- 
ently very  unwillingly. 

This  same  person  was  in  the  clerk's  office  one 


DEPUTY  SHERIFF.  61 

day  talking  with  the  clerk  (my  predecessor), 
when  some  young  ladies  came  in  and  asked  him 
to  subscribe  to  an  entertainment.  "  What  kind 
of  an  entertainment  ?  "  he  inquired.  "  A  musi- 
cal entertainment,"  replied  one  of  the  young 
ladies.  He  put  his  hand  in  his  pocket,  and  jin- 
gling some  silver  coins  he  had  in  it  said,  "  Ah, 
my  dear,  that 's  the  sweetest  music  I  know  of." 

In  the  spring  of  1848,  Mr.  George  C.  Wilde, 
who  with  my  predecessor  was  a  joint  clerk  of 
the  Court  of  Common  Pleas  and  of  the  Su- 
preme Judicial  Court,  came  into  the  office  one 
day  and  said  to  me,  "  Currier  [his  clerk]  is  go- 
ing to  leave ;  if  you  will  come  into  my  office  I 
will  give  you  three  hundred  dollars  in  addition  to 
what  you  are  getting  now."  I  told  him  I  would 
think  of  it  for  a  day  or  two.  By  a  curious  coin- 
cidence the  same  day,  Mr.  Eveleth,  who  was 
then  sheriff  of  Suffolk  County,  came  into  the 
office  and  said,  "Mr.  Willard,  Mr.  Pratt,  my 
deputy  in  the  court  room,  is  so  busy  serving 
writs  that  he  does  not  have  time  to  attend  to 
the  duties  of  the  court.  I  should  like  to 
appoint  you  deputy  to  serve  as  few  writs  as  you 
possibly  can,  and  sit  in  the  court  to  keep  order, 
and  that  will  give  you  four  hundred  dollars  a 
year  more."  I  went  to  Mr.  Edward  D.  Sohier 
who  had  been  very  kind  to  me.     He  said,  "  You 


62  CURIA. 

have  become  somewhat  familiar  now  with  the 
practice  of  the  court  and  clerk's  office,  and  if 
Mr.  Willard  will  consent,  you  can  make  both 
situations  work  together ;  I  advise  you  to  ac- 
cept Mr.  Eveleth's  proposition."  I  stated  the 
case  to  Mr.  Willard,  and  he  saw  no  difficulty 
in  my  carrying  on  the  business  of  the  office,  and 
being  in  the  court  room ;  thereuiDon,  I  accepted 
the  position  offered  me,  and  held  it  during  the 
remainder  of  Mr.  Eveleth's  term.  I  was  re- 
appointed by  Henry  Crocker,  and  again  by 
John  M.  Clark,  retaining  it  up  to  1855. 

While  I  was  holding  my  commission  as 
deputy    sheriff,    and   before    I    was    appointed 

assistant  clerk,  I  had  this  affair  with  Mr. , 

who  was  the  chief  of  police. 

By  order  of  Chief  Justice  Daniel  Wells,  I 
took  the  jury  to  view  some  premises  on  the 
corner  of  Bulfinch  and  Court  streets,  where 
there  had  been  a  fire.  While  the  jury  went 
down  into  a  cellar,  and  as  I  stood  on  the 
second  or  third  step  down,  a  stout,  rugged  man 
came  along  and  was  about  to  pass  me.  I  said, 
"  You  can't  go  down  here,  sir ;  this  is  a  jury 
viewing  the  premises."  He  said,  "I'll  show 
you  that  the  chief  of  police  can  go  anywhere." 
The  steps  were  covered  with  ice,  and  I  did  not 
have  much  of  a  foothold  ;  before  I  could  remon- 
strate any  further  he  seized  me,  threw  me  one 


A    CONFLICT   OF  AUTHORITY.  C.'-J 

side,  and  went  down.  After  I  returned  the  jury 
to  the  court,  a  reporter  of  one  of  the  daily 
papers  was  present,  to  whom  I  related  the 
facts. 

"  Oh,  there  's  some  mistake,"  he  said  ;  "  Mr. 

would  not  do  such  a  thing- ;  let 's  go  over 

to  the  City  Hall,  and  if  he  is  in  I  will  point  him 
out  to  you,"  We  went,  and  as  he  opened  a  door 
I  looked  through  the  aperture  ;  he  pointed  him 
out,  and  I  said,  "  Yes,  that 's  the  man."  I  went 
back  to  the  court  room  and  reported  the  affair 
to  Chief  Justice  Wells.  He  was  very  indig- 
nant (I  never  saw  him  angry),  and  sent  an 
officer  to  the  chief  of  police  to  notify  him  to  be 
in  court  the  next  morning  at  nine  o'clock. 

He  appeared,  and  the  chief  justice  told  liim 
that  he  had  learned  that  he,  the  chief  of  police, 
had  assaulted  one  of  his  officers,  and  asked  him 
what  excuse  he  had. 

His  reply  was,  that  he  thought  he  could 
go  where  he  pleased.  "  Were  you  not  warned, 
sir  ?  "  said  the  chief  justice.  "  I  was,"  replied 
the  chief.  "  Then  why  did  you  assault  one  of 
my  officers  ?  "  He  made  no  further  reply,  but 
the  chief  justice  said,  "  I  shall  require  you  to 
make  an  apology  to  the  Court,  also  to  Mr. 
Willard."  He  did  so,  after  which  we  were  the 
best  of  friends. 

After  I  was  appointed  deputy  sheriff,  I  caused 


64  CURIA. 

what  I  believed  to  be  several  improvements 
made  in  the  old  court  room.  I  found  jurors 
putting  their  feet  on  the  top  bar  in  front  of 
them,  so  I  had  an  iron  rod  inserted  through  the 
posts,  to  rest  their  feet  on  ;  and  this  was  soon 
followed  in  the  other  court  rooms.  I  found  that 
the  spectators  frequently  rested  their  feet  on  the 
back  of  the  settees  in  the  rear  of  the  bar. 
These  were  boarded  up  and  neatly  painted. 
There  was  a  gallery  in  which  tramps  and 
dirty  loafers  lounged,  and  if  it  was  not  carefully 
examined  every  evening,  some  were  found  sleep- 
ing there.  I  recommended  to  the  authorities 
its  removal,  and  this  was  done. 

Charles  Devens,  late  one  of  the  Justices  of 
the  Supreme  Judicial  Court,  was  at  one  time 
U.  S.  Marshal.  While  the  marshal  was  out 
of  town  in  April,  1851,  Deputy  Marshal  Burns, 
with  the  connivance  of  Francis  Tukey,  City 
Marshal  of  Boston,  arrested  Thomas  Sims,  an 
escaped  slave,  and  there  was  great  excitement, 
especially  among  crowds  of  people  who  gathered 
in  Court  Square.  Charles  G.  Davis  sued  out  a 
writ,  de  honiine  rcjjlegiando,  which  was  signed 
by  my  predecessor,  and  a  bond  given,  signed  by 
Thomas  Sims  as  principal,  and  Charles  G.  Davis, 
Timothy  Gilbert,  Samuel  E.  Sewall,  Wendell 
Phillips,  Ellis  Gray  Loring,  and  Francis  Jack- 


ARREST   OF   THOMAS   SIMS.  65 

son,  as  sureties,  which  writ  and  bond  were  put 
into  the  hands  of  Daniel  J.  Coburn,  then  a 
deputy  sheriff  of  Suffolk  County,  for  service. 
He  made  the  following  return  upon  the  writ :  — 

Officer's  Retukn. 
Suffolk  s.  s.  April  5,  1851. 

By  virtue  of  the  within  writ,  I  have  at  two 
different  times  on  this  day  demanded  of  the 
within  named  Charles  Devens,  Esquire,  U.  S. 
Marshal,  the  surrender  to  me  and  the  delivery  of 
the  within  named  Thomas,  from  duress  and  im- 
prisonment, at  the  same  time  presenting-  to  the 
said  Devens  this  writ  with  the  annexed  bond  of 
the  said  Sims,  with  sureties  in  the  sum  of  three 
thousand  dollars  ;  but  the  said  Devens  refused 
to  deliver  the  said  Sims  from  duress  and  im- 
prisonment, claiming  to  hold  him,  the  said 
Sims,  by  virtue  of  legal  process  to  him  directed 
as  the  U.  S.  Marshal  for  the  district  of  Massa- 
chusetts ;  and  the  said  Devens  at  the  time  of 
the  last  above  mentioned  demand  by  me  made 
upon  him  for  the  delivery  of  the  said  Sims  from 
duress,  said  that  he  had  him,  the  said  Sims,  in 
his  custody ;  and  if  I  in  the  service  of  this  writ 
should  attempt  to  take  the  said  Sims  from  him 
the  said  Devens,  he  the  said  Devens  should 
interpose  such  and  so  much  forcible  resistance 
as  would  enable  him  to  retain  the  said  Sims  in 


66  CURIA. 

his  custody  :  and  I  further  return,  that  at  the 
time  of  said  demands,  the  said  Devens  had,  as 
he  informed  me,  under  his  control,  a  large  num- 
ber of  men  placed  in  and  about  the  Court  House 
of  Boston,  where  I  understood  the  said  Sims  to 
be  confined,  as  his  assistants,  and,  as  I  was  in- 
formed, to  prevent  the  said  Sims  from  being 
taken  from  his  custody :  I  therefore,  for  the 
reasons  hereinbefore  stated,  return  this  writ 
without  delivering  the  said  Sims  from  duress 
and  imprisonment,  and  without  service. 

Daniel  J.  Coburn,  ,Z>.  Sheriff. 

The  original  writ  was  given  to  me  after  it 
was  found  valueless.  Mr.  Devens  was  firm, 
and  the  writ  was  not  served. 

I  recall  particularly  the  rendition  of  Burns, 
a  slave,  who  was  ordered  to  be  returned  by 
Judge  Edward  G.  Loring.  On  the  memorable 
evening  of  May  27,  1854,  after  the  meeting  in 
Faneuil  Hall,  now  become  historic,  a  large 
crowd  of  persons  assembled  round  the  middle 
door  of  the  Court  House  on  the  west  side. 
All  sorts  of  violence  were  suggested,  —  battering 
rams,  etc.  Some  pistol  shots  were  fired,  one  of 
which  killed  a  police  officer  named  Batchelder, 
and  some  marks  of  the  bullet  holes  remained  in 
the  ceiling  over  the  door  for  many  years.     To 


RENDITION   OF  ANTHONY  BURNS.  07 

quote  from  the  "Post":  "T.  W.  Higginson  was 
one  of  the  men  who  attempted  to  rescue  An- 
thony Burns,  the  fugitive  slave,  from  his  con- 
finement in  the  Court  House  in  Boston,  and  was 
wounded  in  that  ill-starred  undertaking.  The 
honor  of  being  indicted  for  murder  with  Theo- 
dore Parker  and  Wendell  Phillips  was  next 
thrust  upon  him,  but  a  flaw  in  the  indictment 
secured  his  discharge." 

Cannon  were  placed  on  the  southerly  end  of 
Court  Square,  pointing  toward  Court  Street, 
and  huge  chains  encircled  the  Court   House. 

On  the  second  day  of  June,  1854,  a  section 
of  U.  S.  Artillery  with  a  brass  cannon  marched 
into  Court  Square  in  the  rear  of  the  City  Hall 
and  commanded  its  east  side.  The  Boston 
military  guarded  the  avenues  through  which 
the  parties  who  had  the  custody  of  Burns  were 
to  proceed.  At  two  p.  m.,  a  body  of  Lancers  led 
off ;  next,  two  sections  of  U.  S.  Marines ;  then 
a  hollow  square,  two  files  deep,  composed  of 
persons  in  the  employ  of  U.  S.  Marshal  Watson 
Freeman,  his  deputy  marshals,  etc.  ;  each  per- 
son armed  with  a  sabre  and  a  pair  of  pistols. 
In  the  middle  of  the  square  were  Burns  and 
Marshal  Freeman. 

In  the  rear  of  the  square  were  two  more 
sections  of  marines  and  the  artillery  in  the  rear 
of  them  ;  and  thus  Burns  was  marched  off. 


G8  CURIA. 

I  sat  in  the  lobby  with  Judge  Henry  W. 
Bishop,  of  the  Court  of  Common  Pleas,  looking 
out  on  all  these  paraphernalia  and  marks  of 
slavery,  disgusted  and  indignant. 

Judge  Bishop  suggested  that  he  would  like 
some  dinner,  and  I  said,  "  Order  it,  and  you 
shall  have  it."  "  But  we  are  in  chains,"  he  said, 
" and  sentries  are  parading  in  front."  "Give 
your  orders,  sir,  if  you  please,"  I  responded,  and 
he  said,  "  I  order."  I  ran  down,  and  as  a  sen- 
try took  hold  of  me,  I  broke  away  and  told  him 
at  his  peril  not  to  interfere  with  a  messenger 
from  the  Court.  I  then  went  to  Parker's  Hotel, 
now  Young's,  ordered  the  dinner,  and  returned 
with  the  waiter,  and  reached  the  court  without 
further  molestation. 

A  court  called  the  Superior  Court  of  the 
County  of  Suffolk,  a  local  tribunal  for  tliis 
county,  was  established  by  an  act  of  the  Legis- 
lature of  1855. 

The  act  was  approved  May  21,  to  take  effect 
the  first  Tuesday  of  October  of  that  year. 

This  was  during  the  administration  of  Gov- 
ernor Gardner,  and  the  terms  of  the  Court  of 
Common  Pleas,  required  by  law  to  be  held  in 
Suffolk  County,  were  then  abolished. 

The  salaries  and  all  the  expenses  of  this  court 
were  paid  by  the  city  of  Boston. 


CHIEF  JUSTICE   NELSON.  69 

Six  terms  were  held  each  year,  and  the  justices 
were  ex  officio  the  justices  of  the  Municipal 
Court  of  the  city  of  Boston,  then,  so  called,  a 
Court  of  Criminal  Jurisdiction,  but  being  a  part 
of  the  Superior  Court.  Four  justices  were  ap- 
pointed as  follows :  Albert  H.  Nelson,  Chief 
Justice ;  Josiah  G.  Abbott ;  Charles  P.  Hunting- 
ton ;  Stephen  G.  Nash  —  all  deceased. 

Shortly  after  the  resignation  of  Chief  Justice 
Nelson,  who  died  in  June,  1858,  Judge  Abbott 
having  resigned,  Charles  AUen,  of  Worcester, 
was  appointed  Chief  Justice  of  the  Superior 
Court  of  the  County  of  Suffolk,  and  Marcus 
Morton,  jr.,  late  Chief  Justice  of  the  Supreme 
Court,  Associate  Justice. 

I  make  the  following  extract  from  the  reso- 
lutions submitted  to  the  Court,  relative  to  Chief 
Justice  Nelson  ;  Chief  Justice  Allen,  Justices 
Hunting-ton,  Nash,  and  Morton  on  the  bench: 
"  That  he  is  entitled  to  the  respectful  recollec- 
tion of  all  who  can  appreciate  that  rare  combi- 
nation of  talent  and  learning  with  personal  and 
official  integrity,  kindness  of  heart,  sweetness  of 
temper,  and  an  unfailing  courtesy  of  demeanor 
at  the  bar,  and  on  the  bench,  of  which  he  fur- 
nished so  signal  an  example."  And  in  this  con- 
nection I  would  like  to  add  that  my  father  told 
me  that  Caleb  Cushing  and  Albert  H.  Nelson 
were  men  of  the  best  natural  ability  that  he 
ever  had  among  all  his  pupils  at  college. 


70  CURIA. 

After  Chief  Justice  Nelson  resigned,  it  was 
mooted  whether  or  not  his  resignation  was  valid, 
and  it  was  doubtful  whose  tc^te  the  writs  should 
properly  bear.  Henry  W.  Paine  said  he  made 
a  writ  on  the  day  when  it  was  talked  of,  and 
inserted  all  the  three  justices,  and  said  if  it  was 
pleaded  to,  they  might  strike  out  whichever 
they  pleased.  The  bench  had  previously  con- 
sisted of  four  judges.  The  entries  were  then 
made  every  two  months,  the  fees  for  attendance 
were  abolished,  and  in  place  thereof  five  dollars 
were  allowed  as  term  fees. 

Augustus  H.  Fiske  wrote  the  following  re- 
commendation for  me  to  be  appointed  assistant 
clerk  of  that  court :  — 

"  The  undersigned  respectfully  represent  that 
they  have  known  Joseph  A.  Willard,  who  has 
been  for  many  years  an  assistant  in  the  office 
of  the  Clerk  of  the  Court  of  Common  Pleas  for 
the  Comity  of  Suffolk  ;  and  also  an  officer  of 
said  Court ;  we  believe  him  to  be  well  qualified 
to  fill  the  office  of  assistant  clerk  of  the  Supe- 
rior Court  of  the  County  of  Suffolk,  and  most 
cheerfully  recommend  and  request  his  appoint- 
ment thereto.  His  manners  and  temper  are 
such  as  we  believe  render  him  fit  for  an  office 
which  requires  the  exercise  of  great  patience 
and  great  equanimity  of  temper." 

This   was   signed   by  Rufus    Choate,  A.    H. 


DAILY   TRIAL   LISTS.  71 

Fiske,  Edward  D.  Sohier,  Seth  J.  Tliomas,  John 
C.  Park,  Hutchins  and  Wheeler,  William  Gas- 
ton, and  two  hundred  otliers.  There  was  another 
applicant,  who  was  recommended  by  Governor 
Gardner,  but  I  was  appointed.  Prior  to  my  ap- 
pointment, the  clerk  of  the  court  in  this  county, 
and,  so  far  as  I  am  informed,  in  all  other  coun- 
ties, had  not  been  in  the  practice  of  preparing 
daily  lists  of  cases  to  be  tried;  antl  the  only 
manner  in  which  the  bar  could  ascertain  the 
order  of  the  cases  was  to  get  them  in  the  best 
way  they  could  from  the  main  trial  list. 

When  I  first  went  into  court  as  assistant 
clerk,  I  found  it  very  troublesome  and  annoying 
even  for  me  to  keep  the  run  of  the  trials  in  the 
old  manner,  and  therefore,  not  only  for  the  con- 
venience of  the  bar,  but  for  myself  as  well,  I 
began  making  regular  daily  lists  which  have 
been  kept  ever  since  ;  these  are  called  by  some 
the  short  lists. 

There  are  so  many  talented  young  men  who 
have  made  their  debut  at  the  Suffolk  bar  since 
I  was  admitted,  that  it  would  be  invidious  to 
select  any  one  or  any  number  of  them  by  name 
as  lawyers  or  advocates. 

The  act  establishing  "The  Superior  Court" 
was  passed  in  1859,  and  went  into  full  effect  on 
July  1  of  that  year. 


72  CURIA. 

This  act  abolished  the  old  Court  of  Common 
Pleas,  the  Superior  Court  of  the  County  of  Suf- 
folk, and  the  old  Municipal  Court  of  the  city  of 
Boston  ;  and  it  required  the  appointment  of  ten 
justices.     The  following  ten  were  appointed :  — 

Charles  Allen,  Chief  Justice,  who  resigned  in 
1867,  and  died  in  1869. 

Seth  Ames,  appointed  Chief  Justice  in  1867, 
promoted  to  the  Supreme  Judicial  Court,  Janu- 
ary 19,  1869,  resigned  in  1881,  and  deceased 
in  that  year. 

Lincoln  F.  Brigham,  appointed  Chief  Justice 
in  1869,  who  resigned  in  1890,  the  sole  surviv- 
ing member  of  that  bench,  is  now  living  in 
Salem,  respected  and  loved  by  every  one  who 
ever  came  in  contact  with  him. 

Otis  P.  Lord,  appointed  to  the  Supreme  Judi- 
cial Court  in  1875,  and  deceased  in  1884. 

Marcus  Morton,  jr.,  appointed  to  the  Supreme 
Judicial  Court,  April  15, 1869,  became  its  Chief 
Justice  in  1882,  and  died  in  1891. 

John  P.  Putnam,  died  in  1882. 

Julius  Rockwell,  resigned  in  1886. 

Thomas  Russell,  resigned  in  1867,  and  died 
in  1887. 

Henry  Vose,  died  in  1869,  and  Ezra  Wilkin- 
son in  1882. 

Chief    Justice   Allen   one   day   said    to   me, 


THE  SUPERIOR    COURT.  73 

"  Mr.  Willard,  I  don't  like  this  idea  of  holding 
a  peripatetic  court.  I  want  you  to  take  a  walk 
with  me."  We  went  into  a  large  number  of 
halls,  and  finally  into  the  Meionaon,  which  was 
then  quite  a  large  room  in  the  rear  of  Tremont 
Temple.  He  called  the  janitor,  made  several 
inquiries  about  the  rent  and  heating,  and  how 
long  it  would  take  to  arrange  seats  for  the 
jurors,  judges,  and  clerk.  There  were  suffi- 
cient benches  for  spectators  and  witnesses  al- 
ready. After  receiving  satisfactory  replies,  he 
said :  "  Mr.  Willard,  have  the  kindness  to  in- 
form the  mayor  and  aldermen  that  I  have 
taken  this  for  the  court  room."  We  sat  there 
some  years.  In  1861  the  new  addition  to  the 
old  Court  House  where  the  sheriff's  office,  the 
record  room,  the  law  library,  and  the  second 
session  are  now  (January,  1892)  situated,  was 
completed.  The  old  Court  House  in  Boston  was 
finished  in  December,  1836,  and  the  new  part, 
the  southerly  addition,  was  finished  in  December, 
1861.  The  architect  of  the  old  Court  House 
was  Solomon  Willard,  a  cousin  of  my  father. 

One  morning  in  1861  I  was  sent  for  by 
Governor  Andrew  to  assist  him  and  his  secre- 
tary, Albert  Gallatin  Browne,  jr.,  who  was  after- 
wards our  Supreme  Judicial  Court  Reporter. 
This  was  at  the  time  of  the  excitement  caused  by 
the  signs  of  civil  war.     After  having  cleared  the 


74  CURIA. 

business  of  the  Court,  I  went  to  the  State  House 
and  told  the  messenger  who  came  to  the  door 
that  I  wanted  to  see  Governor  Andrew.  He 
gave  me  a  seat  in  the  corridor  and  told  me  to 
wait  there. 

In  about  ten  minutes  the  Governor  appeared. 
He  said  :  "  Joe  Willard,  what  are  you  doing 
here?"  "In  the  language  of  Metamora,  'I 
have  come,'  and  if  you  don't  want  me,  I  '11  go 
home."  He  laughed  and  said :  "  I  did  n't 
mean  that.  I  meant,  what  are  you  doing,  sit- 
ting out  here?  Browne  and  I  are  nearly 
smothered  in  the  casements  with  correspond- 
ence, and  I  want  you  to  heljD  us  out  of  it ;  come 
in  and  take  hold."  I  was  there  three  days 
with  them,  and  worked  constantly,  as  did  the 
Governor  and  Browne.  After  that  the  courts 
resumed  their  sessions  regularly,  and  I  attended 
to  my  duties  there. 

On  hearing  of  the  illness  of  my  son,  who  was 
at  the  front  in  Major  Jones's  11th  Battery,  and 
having  obtained  a  pass  through  the  lines  from 
General  Butler,  I  left  Boston  in  1864  and  pro- 
ceeded via  New  York  and  Baltimore  to  Fortress 
Monroe,  where  unexpectedly  I  met  Nicholas  St. 
John  Green,  one  of  the  general's  aids,  who  was 
so  kind  as  to  take  me  in  charge  up  the  James 
River  to  Bermuda  Hundreds. 


AT    FORT   STEAD  MAX.  75 

In  the  evening  wo  went  in  an  ambulance  to 
General  Butler's  headquarters,  where  I  had  a 
short  interview  with  him,  and  after  Colonel 
Green  had  transacted  some  business  matters  we 
■went  on  board  a  steamboat,  and  Colonel  Green 
asked  for  two  staterooms.  "  We  have  none  to 
spare,"  was  the  reply.  "  Open  two  at  once  by 
order  of  General  Butler,"  said  Colonel  Green, 
and  the  order  was  instantly  complied  with. 
Next  morning  on  our  arrival,  General  Grant's 
headquarters  and  dispatch  boat  were  shown  me. 
The  general  himself  was  in  the  house,  and 
though  many  people  were  introduced,  and 
Colonel  Green  offered  to  introduce  me,  I  de- 
clined through  sheer  bashfulness.  Thence  I 
proceeded  by  rail  to  the  camping  ground  of  the 
11th  Massachusetts  Battery  (9th  Corps)  in  the 
rear,  where  my  son  was.  In  the  afternoon  of 
the  same  day  my  son  and  myself  went  to  the 
front  to  Fort  Steadman,  and  while  there  I 
mounted  a  bomb-proof,  to  see  the  battery  shell 
a  train  of  cars  running  to  Petersburg.  Soon  I 
heard  some  sharp,  whistling  sounds  near  my 
head.  I  said,  "  What  is  that.  Major  Jones  ?  " 
"  Those  are  minies,  and  you  had  better  step  down 
into  the  bomb-proof,  or  kneel  behind  the  fortifi- 
cation," he  said,  —  and  I  followed  his  advice. 
That  night  I  slept  at  the  fort  and  the  next 
morning,  with  my  son,  started  for  the  rear.     A 


76  CURIA. 

light  snow  had  fallen  in  the  night  and  the  ap- 
pearance o£  the  sceneiy  and  surroundings  was 
much  changed,  so  that  my  son  was  at  a  loss  which 
way  to  proceed.  In  a  few  moments  we  met  a 
soldier  in  United  States  uniform,  of  whom  we  in- 
quii'ed  the  way  to  the  9th  Corps.  As  he  directed 
us,  he  remarked :  "  Yon  are  now  walking  towards 
the  rebel  pickets."  We  turned  about  at  once 
and  reached  our  destination  in  safety.  A  week 
later  Fort  Steadman  was  taken  by  the  Confeder- 
ates in  the  night,  but  retaken  the  next  morning 
by  the  United  States  11th  Battery  and  a  portion 
of  the  infantry  of  the  9th  Corps. 

On  the  12th  of  Ma}^  1865,  my  predecessor, 
Joseph  Willard,  Esq.,  died,  having  been  Clerk 
of  the  Court  of  Common  Pleas,  of  the  Superior 
Court  of  the  County  of  Suffolk,  and  of  the  pres- 
ent Superior  Court ;  in  all,  twenty-five  years. 

In  a  work  like  this,  which  only  aims  to  pre- 
sent some  of  the  lighter  phases  of  court  or 
clerical  life,  any  extended  sketch  of  him  would 
be  out  of  place.  But  there  are  none  who  came 
in  contact  with  him  during  his  long  term  of  ser- 
vice, though  their  number  is  rapidly  lessening, 
but  will  recall  his  dignified  courtesy,  his  clear 
and  judicial  mind  and  habits  of  exact  method 
that  simplified  the  routine  of  the  office  and 
bix)ught  its  multifarious  details  into  sound  work- 


THE    GREAT   BOSTON   FIRE.  11 

ing  order.  His  services  as  auditor,  master,  and 
referee  were  constantly  sought.  Upon  his 
decease  I  was  appointed,  on  the  20th  of  May 
of  the  same  year.  Clerk  of  the  Superior  Court 
for  the  vacancy  existing  until  the  annual 
election. 

On  the  7tli  day  of  November,  1865,  I  was 
elected  without  opposition  to  be  Clerk  of  the  Su- 
perior Court  for  the  unexpired  term  of  my  pre- 
decessor, to  wit,  one  year.  In  November,  1866, 
I  was  elected  for  five  years  from  the  first  Wed- 
nesday in  January,  1867. 

In  1871  I  received  the  Republican  and  Dem- 
ocratic nominations  for  Clerk,  and  was  again 
elected  without  opposition. 

In  1872,  although  residing  in  Boston,  I  passed 
my  sunnners  and  much  of  the  autumn  in  Cam- 
bridgeport.  On  the  9th  of  November  of  that 
year,  having  a  good  view  of  Boston  across  the 
Charles  River,  I  saw  a  fire  which  appeared  to  be 
spreading  rapidly.  I  harnessed  my  horse  and 
drove  to  the  Court  House,  got  out  the  dockets 
and  the  pleadings  in  suits  then  pending  in 
court,  put  them  into  my  wagon,  and  took  them 
to  my  home  at  two  o'clock  on  Sunday  morning. 
After  having  put  them  in  a  safe  place,  I  went  in 
again  on  foot,  and,  having  satisfied  myself  that 
the  Court  House  was  in  no  danger,  I  returned 
home.     This  was  the  "  Great  Boston  Fire." 


78  •    CURJA. 

For  some  time  prior  to  1876  I  had  been 
strongly  impressed  with  the  feeling-  that  there 
should  be  formed  in  this  county  a  Bar  Associa- 
tion, to  elevate  the  tone  of  the  bar  and  to  look 
after  cases  of  malfeasance.  After  conversing 
with  several  members  of  the  bar  relative  to  it, 
at  my  request  the  following  paper  was  delivered 
to  me  addressed  and  ready  for  signatures. 
These  I  procured,  and  called  the  meeting  there 
suggested. 

To  Joseph  A.  Willard,  Esq., 

Clerk  of  the  Superior  Court  of  Suffolk  County. 

We  the  undersigned,  members  of  the  Suffolk 
Bar,  respectfully  request  that  you  would  call  a 
meeting  of  the  undersigned  at  such  time  and 
place  as  you  may  designate,  to  consider  the  for- 
mation of  a  Bar  Association  in  this  county. 

Sidney  Bartlett,  Josinh  G.  Abbott, 

William  Gaston,  E,  Rockwood  Hoar, 

Henry  W.  Paine,  Alex.  S.  Wheeler, 

Edward  D.  Solder,  Jas.  B.  Richardson, 

Henry  C.  Hut  chins,  Sumner  Alhee, 

Chas.  B.  Goodrich,  Hales  W.  Suter, 

Alonzo  W.  Boardmaii,  Baxter  E.  Perry, 

Daniel  C.  Linscott,  Richard  H.  Dana,  Jr., 

Jas.  M.  Keith,  George  S.  Hale, 

Charles  A.  Welch,  Augusttis  Buss, 

Charles  Theo.  Russell,  Seth  J.  Thomas, 


SUFFOLK    COUNTY   BAR   ASSOC  I  ATI  OX.       79 

Horace  G.  Hutchins,  Jolin  H.  Hrtvdy, 

Nathan  Morse,  Moorfield  Storey, 

Lewis  W.  Howes,  AValbridge  A.  Field, 

Napoleon  B.  Bryant,  Albert  E.  PillsLury, 

John  D.  Long,  George  O.  Shattuck, 

Lemuel  Shaw,  William  G.  Russell, 

John  C.  Dodge,  David  Thaxter, 

Robert  D.  Smith. 

[Those  in  italic  are  deceased ;  those  in  roraan  still  living.] 

Boston,  Oct.  20,  1875. 
In    accordance    herewith,    a   meeting   of   the 
above-named  persons  is  called  at  the  First  Ses- 
sion Superior  Conrt  Room,  on  Saturday,  26th 
February,  at  11  o'clock  a.  m. 

Mr.  Bartlett  was  called  to  preside,  and  a  com- 
mittee was  appointed  to  submit  some  plans  of 
organization.  After  the  organization  was  ef- 
fected, at  some  early  period,  at  a  meeting  held 
by  the  association,  I  moved  that  a  committee  be 
appointed  to  procure  a  room  where  they  might 
meet,  and  to  begin  the  nucleus  for  a  library. 
A  judge  who  is  now  on  the  bench,  and  who 
was  seated  not  far  distant  from  me,  whisiiered 
to  some  of  the  other  members  so  that  I  heard 
it :  "  Let 's  oppose  it."  It  was  for  the  time 
voted  down,  but  carried  at  a  subsequent  meet- 
in  u". 


80  CURIA. 

Up  to  1881,  the  jurors  summoned  were  called 
alphabetically,  the  first  part  of  the  alphabet  being 
called  the  first  jury,  the  next  the  second  jury, 
the  remainder,  supernumeraries.  In  Suffolk 
County  the  names  are  now  all  put  into  a  box 
and  shaken  up,  and  twelve  names  are  drawn  out 
which  constitute  a  jury.  Prior  to  that  time,  the 
twelve  men  composing  each  jury  sat  through  the 
whole  term ;  excepting,  if  one  was  sick  or  tem- 
porarily excused,  his  place  was  filled  by  a  super- 
numerary ;  and  when  the  excused  juror  returned 
he  resumed  his  seat.  Comi)laints  were  rife 
among  the  bar  that  the  juries  were  apt  to  be- 
come clannish  and  get  into  ruts ;  that  they  had 
their  friends,  and  that  in  a  hotly  contested  case 
in  the  jury-room,  which  might  end  in  a  disagree- 
ment, the  same  fight  would  be  carried  on  there 
in  the  next  case ;  that  the  jury  remaining  the 
same  body  through  the  term,  they  could  be  more 
easily  influenced ;  and  a  bill  was  drawn  which 
was  submitted  to  me.  I  made  one  or  two  sug- 
gestions, and  the  bill  was  passed  by  the  Legis- 
lature and  is  in  force  in  Suffolk  County  at  this 
time.  It  is  sometimes  said  that  there  is  less 
unanimity  in  a  jury  so  formed,  but  I  do  not 
think  so  ;  and  recently  a  session  was  held  by  Mr. 
Justice  Barker,  in  which  fifty-five  verdicts  were 
returned  in  as  many  days  without  a  single  dis- 
agreement. 


JUSTICES    OF   THE   SUPERlOli    COURT.        81 

In  the  autumn  of  1881  the  followinjj;  resohi- 
tion  was  passed  unanimously  by  the  Democratic 
County  Convention  :  — 

"  lieaolved,  that  aU  officers  connected  with  the 
administration  of  justice  should  be  as  far  as  pos- 
sible removed  from  partisan  assaults  or  control, 
and  that  honesty  and  efficiency  alone  should  be 
the  qualities  looked  for  in  such  officers." 

In  1881  was  the  first  time  that  a  candidate  was 
nominated  in  opposition  to  me.  I  was  elected 
by  five  thousand  majority,  again  in  1886  by 
about  seventeen  hundred  majority,  and  in  1891 
I  was  nominated  by  both  parties. 

Since  the  organization  of  the  Superior  Court, 
the  following  additional  appointments  and  pro- 
motions have  been  made  :  — 

Lincoln  F.  Brigham,  appointed  in  1859,  made 
Chief  Justice  in  1869,  and  resigned  in  1890. 

Chester  I.  Reed,  appointed  in  1867,  resigned 
in  1871,  and  died  in  1872. 

Charles  Devens,  appointed  in  1867,  promoted 
to  the  Supreme  Judicial  Court  in  1873,  resigned 
to  become  Attorney  General  of  the  United 
States,  ]\Iarch  12,  1877,  and  reappointed  to 
the  Supreme  Judicial  Court  in  1881 ;  he  died 
in  1892. 

Francis  H.  Dewey,  appointed  in  1869,  re- 
signed in  1881,  and  died  in  1887. 


82  CURIA. 

Robert  C.  Pitman,  appointed  in  18G9,  and 
died  in  1891. 

Henry  E.  Scndder,  appointed  in  18G9,  re- 
signed in  1872,  and  died  in  1892. 

John  W.  Bacon,  appointed  in  1871,  and  died 
in  1888. 

William  Allen,  appointed  in  1872,  promoted 
to  the  Supreme  Judical  Court  in  1881,  and  died 
in  1891. 

P.  Emory  Aldrich,  appointed  in  1873. 

Waldo  Colburn,  appointed  in  1875,  promoted 
to  the  Supreme  Judicial  Court  in  1882,  and  died 
in  1885. 

William  S.  Gardner,  appointed  in  1875,  pro- 
moted to  the  Supreme  Judicial  Court  in  1885, 
and  died  in  1888. 

Hamilton  B.  Staples,  appointed  in  1881,  and 
died  in  1891. 

James  M.  Barker,  appointed  in  1882,  and 
promoted  to  the  Supreme  Judicial  Court  in 
1891. 

Caleb  Blodgett,  appointed  in  1882. 

Albert  Mason,  appointed  in  1882,  and  made 
Chief  Justice  in  1890. 

Charles  P.  Thompson,  appointed  in  1885, 
died  in  1894. 

Justin  Dewey,  appointed  in  1886. 

John  W.  Hammond,  appointed  in  1886. 

Edgar  J.  Sherman,  appointed  in  1887. 


JUSTICES    OF   THE   SUPERIOR    COURT.        83 

Robert  R.  Bishop,  appointed  in  1888. 

James  R.  Dunbar,  appointed  in  1888. 

John  Lathi'op,  appointed  in  1888,  and  pro- 
moted to  the  Supreme  Judicial  Court  in  1891. 

Daniel  W.  Bond^  appointed  in  1890. 

Henry  K.  Braley,  appointed  in  1891. 

John  Hopkins,  appointed  in  1891. 

Elisha  B.  Maynard,  appointed  in  1891. 

Franklin  G.  Fessenden,  appointed  in  1891. 

John  W.  Corcoran,  appointed  in  1892,  and 
resigned  in  1893. 

James  B.  Richardson,  appointed  in  1892. 

Charles  S.  Lilley,  appointed  in  1893. 

Henry  N.  Sheldon,  appointed  in  1894. 


III. 

RES  JUDICATA. 

Relative  to  certain  incisive  remarks  to  ju- 
rors on  account  of  their  verdicts,  and  to  counsel 
who  are  endeavoring  to  get  a  verdict  against 
the  evidence,  I  give  the  following  instances ;  on 
a  previous  jjage  I  have  stated  how  the  juries 
were  impaneled  and  served. 

In  the  spring  of  1881  Joseph  II.  Bradley,  Wil- 
liam Whitten  Dwyer,  and  myself  were  instru- 
mental in  having  enacted  the  present  jury  law, 
in  which  the  panel  is  made  up  or  completed  by 
names  drawn  from  a  box,  so  that  it  is  im]iossible 
for  any  one  to  know,  until  the  draft  is  completed, 
how  the  jury  is  to  be  made  up.  I  remember, 
under  the  old  system,  Mr.  Henry  F.  Durant 
trying  a  cause  which  he  brought  on  a  policy  of 
insurance.  After  the  evidence  was  all  in.  Judge 
Abbott,  who  was  presiding,  asked  him  if  ho 
wished  to  go  to  the  jury ;  Mr.  Durant  replied 
that  he  did.  Judge  Abbott  remarked :  "  If  you 
get  a  verdict,  I  shall  set  it  aside."  The  case 
was  submitted  to  the  jury  and  they  returned  a 
verdict  for  Mr.  Durant. 

After  I  had  taken  the  verdict,  Judge  Abbott 


MASSACHUSETTS   JUSTICE.  85 

said  in  tlie  presence  of  both  counsel  and  juxy, 
"I  will  hear  you,  Mr.  Durant,  at  four  o'clock, 
to  show  cause  why  the  verdict  should  not  be 
set  aside."  Pie  was  heard,  and  Judge  Abbott 
set  aside  the  verdict,  but  allowed  Mr.  Durant 
to  put  in  an  amendment  to  recover  back  the 
premiums  which  he  had  paid. 

In  a  case  which  was  tried  before  Judge  Al- 
drich,  —  it  was  that  of  John  L.  Byrne,  a  citizen 
of  New  Orleans,  who  sought  to  recover  damages 
of  the  Massasoit  Packing  Company,  a  Massa- 
chusetts corporation,  for  the  alleged  breach  in 
not  delivering  to  the  plaintiff  three  thousand 
barrels  of  mackerel,  —  the  defendant  contended 
that  the  agent  who  made  the  contract  with  the 
plaintiff  exceeded  his  authority. 

In  the  course  of  the  argument,  counsel  for 
the  defendants  appealed  to  the  jury  to  find  for 
them  because  the  jjlaintiff  was  a  Southerner, 
and  contended  that  to  give  him  a  verdict  would 
be  sending  Northern  capital  to  the  South. 

Judge  Aldrich,  in  closing  his  charge  to  the 
jury,  said :  "  I  make  a  single  observation,  gen- 
tlemen, upon  this  case.  I  'm  glad  to  know  that 
here  in  Massachusetts  justice  is  not  determined 
by  degrees  of  longitude  or  latitude.  You  are 
entire  strangers  to  me,  but  I  know  that  you  are 
Massachusetts  men,    and    a    Boston   jury ;  and 


86  RES  JUDfCATyE. 

from  the  time  when  a  Boston  jury  acquitted 
British  soldiers  for  shooting  Boston  citizens, 
because  they  were  not  lield  personally  i'es})()n- 
sible,  down  to  the  j^resent  day,  I  think  that 
Boston  juries  have  continued  to  render  verdicts 
according  to  the  law  and  the  evidence,  without 
regard  to  the  location  of  the  plaintiff  or  the 
defendant.  Massachusetts  never  repudiates. 
She  pays  the  last  dollar  in  gold,  if  gold  be 
worth  300  to  1.  Gentlemen,  in  this  case  I  am 
sure  you  will  render  a  verdict  as  if  the  contro- 
versy was  between  A.  and  B.,  without  regard 
to  places  of  habitation,  according  to  the  law  and 
the  evidence  given  you,  and  upon  no  other  con- 
sideration." The  jury  returned  a  verdict  in 
favor  of  the  plaintiff  in  the  sura  of  f  7813.75. 

In  an  action  of  slander  brought  by  G d, 

he  cited  some  ancient  law  to  show  that  the 
greater  the  truth  the  greater  the  libel,  as  it  was 

in  days   long   gone   by.     Mr.  Justice   A d 

then  gave  the  law  as  it  is,  that  the  truth  might 
be  given  in   evidence,  and   proceeded  at    some 

length.     At  the  conclusion  Mr.  G d  agreed 

that   the  law  was  as  his  honor  had  so  lucidly 

stated  it,  when   Judge    A d  replied,  "The 

Court  is  happy  to  be  confirmed  in  its  opinion  of 
the  law  by  a  gentleman  of  your  ability." 

The    plaintiff    had    amended    his    declaration 


ATTEMPTING  TO  INFLUENCE  THE  COURT.     87 

several  times  and  then  drawn  an  entire  new 
declaration.  He  had  much  difficulty  in  putting 
in  his  evidence  under  his  new  declaration,  and 
there  was  more  amending.  Judge  :  ''  You  must 
amend  properly,  or  I  shall  continue  this  action." 
Defendant's  counsel,  Clark :  "  We  do  not  want 
a  continuance,  and  plaintiff  may  amend  as  much 
as  he  chooses."  Judge  :  "  I  shall  continue,  or 
non-suit  him,  or  something  else."  Clark :  "  Your 
honor,  I  should  rather  have  a  non-suit."  Judge  : 
"  I  can't  have  an  amendment  every  time  a  new 
witness  is  put  on."  Clark  :  "  May  I  ask  your 
honor  if  this  shall  be  the  last  amendment  ? " 
Judge :  "  Yes,  sir,  tJie  last.  Gentlemen,  take  a 
recess  till  two  p.  m." 

Thomas  P.  Briggs,  of  Cambridge,  addressed 
two  letters  to  Judge  Aldrich,  one  signed  and 
one  anonymous,  relative  to  the  celebrated 
Downes  case,  and  Mr.  Briggs  was  brought  be- 
fore the  judge.  He  admitted  writing  the  let- 
ters, and  was  asked  if  he  had  any  explanation 
to  make,  for  having  written  to  the  judge  in 
that  way.  Mr.  Briggs  said  it  was  not  to  influ- 
ence the  Court  in  any  way  contrary  to  law ;  that 
he  was  a  paid  writer  for  some  newspapers,  and 
interested  in  public  affairs.  Upon  being  asked 
by  the  judge  if  he  had  no  idea  that  such  pro- 
ceeding was    highly  improper,  he    said  he  had 


88  RES  JUDICATA. 

not  at  the  time  of  writing ;  he  wanted  to  he  a 
peaceahle  and  law-abiding  citizen,  hut  was  igno- 
rant of  the  illegality  of  his  proceeding  as  well 
as  of  the  law. 

The  judge  said  that  it  was  plain  he  was  igno- 
rant of  the  law,  and  what  belonged  to  a  law- 
abiding  citizen. 

After  considerable  evading  to  give  a  direct 
answer  to  the  judge's  questions,  he  finally  said 
that  he  made  a  full  and  unqualified  apology. 
Judge  Aldrich  said :  "  It  is  the  first  time  that 
I  ever  had  occasion  to  call  a  party  before  me, 
to  be  treated  for  the  offense  known  as  contempt 
of  Court,  and  it  is  a  matter  wholly  within 
the  discretion  of  the  Court ;  and  although 
I  regard  this  as  a  case  so  grossly  offensive,  I 
thought  it  was  a  public  duty  which  I  owed  and 
which  I  could  not  avoid  discharging,  to  bring 
you  publicly  before  the  Court,  and  publicly  ex- 
pose this  transaction ;  but  upon  your  present 
statement,  and  upon  the  apology  which  you 
have  made,  and  the  confession  that  you  were 
wrong,  I  am  not  disposed  to  proceed  with  any 
severity  ;  I  shall  not,  therefore,  impose  any  \)en- 
alty ;  although,  as  I  say,  I  have  regarded  it  as 
a  very  gross  proceeding  on  your  part.  It  is  an 
attempt  to  influence  the  Court,  although  it  has 
not  in  the  slightest  degree  affected  my  judgment. 
Notwithstanding  I  regard  it  in  that  light,  yet, 


JUDGE    VS.    COUNSEL.  89 

in  view  of  what  you  have  now  said,  I  sliall  order 
you  to  be  discharged,  and  shall  impose  no  fine 
or  any  other  penalty  upon  you."  Mr.  Briggs 
attempted  to  say  something  more,  and  ad- 
dressed the  judge  as  Mr.  Aldrich.  "  Don't 
call  me  Mr.  Aldrich  ;  you  need  not  say  any- 
thing more.  It  will  not  be  safe  for  you  to  ven- 
ture to  repeat  the  offense." 

In  a  certain  case,  Mr.  Ely  said :  "  Do  j^ou 
know  what  was  being  paid?"  AVitness:  "I 
don't  know  as  I  do."  Judge  Aldrich :  "  Do 
you  know  or  do  you  not  know  ?  "  Witness 
hesitates  some  time.  Judge :  "  You  are  not 
ohliged  to  know  anything ;  the  question  is, 
whether  you  f?o." 

Mr.  S.,  who  had  been  a  Justice  of  the 
Supreme  Judicial  Court,  was  defending  a  cause 
brought  against  the  Boston  and  Albany  Rail- 
road, and  at  the  close  of  the  evidence  asked  the 
Court  (Judge  Aldrich)  to  take  the  case  from 
the  jury.  Judge  Aldrich  took  up  one  of  the 
Massachusetts  Reports,  read  the  facts,  and  said : 
"  In  that  case  the  Supreme  Court  ruled  that  the 
case  should  not  be  taken  from  the  jury."  S. : 
"  I  think  the  facts  in  this  case  differ."  Judge  : 
"  No,  sir,  this  is  a  case  precisely  similar."  S. : 
"  That  may  have  been  the  law  in  that  case." 
Judge :  "  I  think  it  should  be  the  law  here,  as 


90  liKS   JUDICATA. 

the  opinion  in  tli.it  case  was  given  bj^  a  distin- 
gnished  jndge  named  S." 

One  J.  F.,  a  i)ainter,  who  was  arguing  his 
own  cause,  mentioned  something  that  was  not 
in  the  evidence.  The  Court  (Judge  Aklrich) 
said  that  he  could  not  argue  that,  as  it  was  not 
in  the  evidence.  Mr.  F.  :  "  It  onglit  to 
have  been."  Judge  :  "  I  can't  deal  with  what 
ought  to  have  been;  only  with  what  7/r/.s  been." 

A  Mr. was  very  slow  in  trying  a  case, 

consuming  three  or  four  hours  when  he  might 
have  tried  it  in  two.     Judge  Aklrich  remarked : 

"  Mr.    ,  we    have    other  cases    to    try  this 

spring." 

Upon  discharging  a  jury  at  the  end  of  a  term, 
Judge  Aklrich,  after  complimenting  them  upon 
their  punctuality  and  unanimity,  said,  '"  I  have 
heard  it  flippantly  said  by  persons  and  stated  in 
magazines  that  the  trial  by  jury  is  worn  out, 
but  I  say  that  jury  trial  is  one  of  the  foiuida- 
tions  of  self-government,  and  that  when  a  com- 
munity has  not  proper  men  to  put  in  a  jury-box 
their  rights  and  respect  are  gone.  You  can  get 
no  more  wisdom  out  of  a  jury-box  than  you  put 
in,  and  if  the  city  government  w^ill  see  to  it  that 
proper  names  are  put  in  there,  our  rights  and 
liberties  will  be  preserved." 

Judge  Aklrich  in  charging  a  jury  read  from 
one  of  the  Massachusetts  Reports.     Mr.  Dudley 


TRIAL   BY  JURY.  91 

said  :  "  I  except  to  what  your  honor  has  said." 
Judge  Aklrich  :  "  You  can  if  you  like,  but  it  is 
the  opinion  of  the  Supreme  Judicial  Court." 

T.  B.  King  offered  evidence  of  his  client  to 
show  that  he  had  sold  from  the  same  collection 
other  shoes  which  proved  excellent,  and  no 
fault  was  found  with  them.  The  opposing 
counsel  objected.  King,  to  the  Court :  "  If  my 
client  sells  beer  out  of  the  same  vat  to  another 
person,  can't  I  show  it  to  be  good  ?  "  Judge 
Aklrich  :  "  According  to  what  I  have  heard  at 
the  other  end  of  this  Court  House  [criminal 
session]  one  can't  tell  whether  it  is  beer  or  not ; 
I  think  we  had  better  confine  ourselves  to  the 
shoe  trade  ;  your  beer  illustration  is  quite  unfor- 
tunate." King :  "  Then  I  don't  know  as  I 
ought  to  ask  witness  anything  about  this  shoe." 
Judge  :  "  Then  I  would  n't." 

Judge  Aklrich  signified  how  he  might  rule. 
T. :  "I  wish  to  note  an  exception."  Judge  : 
"  Had  n't  you  better  wait  until  the  ruling  is 
made?  We  are  not  trying  this  case  in  order 
to  get  a  bill  of  exceptions  ;  be  a  little  more 
deliberate."  T. :  "I  have  had  so  much  trouble 
in  getting  a  bill  of  exceptions  correct,  that  I 
wish  to  be  in  season  to  preserve  my  rights." 
Judge :  "  You  never  had  any  trouble  with  me, 
sir."  T. :  "  No,  sir ;  I  never  tendered  a  bill  of 
exceptions  to  your  honor,  nor  had  any  trouble 


92  XES   JUDICATA. 

with  your  honor."     Judge  :    "  And  I  trust  you 
never  will." 

Setli  J.  Thomas,  Esq.,  brought  a  suit  against 
an  administratrix  of  a  deceased  jjerson  for  the 
services  of  a  nurse,  during  the  sickness.  The 
answer  was  a  general  denial.  Besides  other 
evidence,  some  letters  of  the  deceased  were 
introduced  in  which  he  stated  that  "  the  nurse 
would  receive  her  reward."  The  defendant's 
counsel  said  he  wished  to  explain  the  letters  as 
having  reference  to  another  world.  Judge : 
"  I  don't  think  you  can  show  that  under  a 
general  denial ;  you  shoidd  have  set  it  up 
specially." 

As  my  term  of  office  expired  with  the  abol- 
ishing of  the  Superior  Court  of  the  county  of 
Suffolk,  I  asked  Chief  Justice  Allen  if  I  should 
not  hand  in  a  petition  with  recommendations  to 
be  appointed  assistant  clerk  of  "  The  Superior 
Court ; "  he  replied,  "  Would  it  not  be  better, 
Mr.  Willard,  to  be  appointed  without  a  pe- 
tition?" 

At  that  time  the  ,bar  were  accustomed  to 
mark  their  cases  "  not  before  "  a  certain  day, 
although  there  was  then  no  statute  allowing  it 
as  there  is  now. 

One  day  before  the  term  commenced,  John 
S.  Holmes  and  Munro  Stevens  brousfht  me  in  a 


ADMONISHING    THE    COURT.  93 

paper  agreeing  to  mark  a  certain  case  over.  I 
told  tlieni  that  the  Chief  Justice  had  given 
orders  not  to  mark  any  more  over  without  a 
motion  to  the  Court.  "  You  can  file  the  paper," 
said  Stevens.  I  said,  "  No  ;  I  can't  do  that." 
And  so  the  case  came  up  in  its  order.  When 
I  called  the  case  and  said :  "  Mr.  Stevens  for 
plaintiff,  and  Mr.  Holmes  for  defense,"  the 
Chief  Justice  asked  them  if  they  were  ready. 
"  I  'm  ready,  your  honor,"  said  Holmes.  Stevens 
began  walking  backwards  and  forwards  across 
the  court  room,'  saying,  "I  'm  7iot  ready ;  the 
fact  is,  we  took  a  pa])er  in  to  Mr.  Willard 
agreeing  to  mark  this  case  over ;  he  not  only 
would  not  mark  it  over,  but  woidd  not  file  the 
paper,  and  said  he  had  received  orders  to  change 
the  practice.  I  am  surprised  ;  I  think  the  Court 
should  be  as  constant  in  their  rules  of  practice 
as  they  are  in  their  rules  of  law." 

The  Chief  Justice  leaned  back,  and  looked 
over  his  glasses  at  him,  and  said  :  "  What  did 
you  say,  sir  ?  "  Stevens  said  something  quite 
different.  "  Yes,  sir ;  but  what  did  you  say 
about  the  Court  being  constant  in  its  rules  of 
practice?"  Stevens,  being  caught,  had  to 
repeat  it.  There  was  a  pause  of  a  minute. 
The  bar  and  the  audience  waited  to  see  what 
came  next.  "  Well,  sir,"  said  the  Chief  Justice, 
"  the  Court  will  take  your  admonition  this  time  ; 


94  JiES  JUDICATA. 

but  next  time,  won't  you  he  kind  enough  to 
give  the  Court  notice  ;  it  might  be  convenient. 
Proceed  with  the  case." 

Stevens  opened  his  case,  and  it  appeared  that 
a  certain  trader  had  failed,  and  sokl  out  his 
accoimts  to  this  plaintiff  for  fifty  cents  on  the 
dollar.  The  Chief  Justice  asked  to  see  the 
papers,  and,  after  having  looked  them  over,  put 
them  in  his  pocket,  and  said :  "  It  is  a  disrepu- 
table action,  and  I  shan't  try  it ;  call  the  next 
case,  Mr.  Clerk,"  About  a  year  after,  he  non- 
suited the  jjlaintiff. 

John  C.  Park  was  once  examining  a  witness 
on  the  voir  dire,  to  see  if  he  was  competent  to 
testify ;  after  the  witness  had  given  his  idea  of 
falsehood  and  punishment,  Mr.  Park  said: 
"  I  '11  not  object  any  further ;  he  seems  to  know 
as  much  as  any  of  us  about  it."  "  Speak  for 
yourself,  Mr.  Park,"  replied  Judge  Allen. 

Munro  Stevens,  after  citing  some  law  to  Judge 
Allen,  proceeded  to  give  some  opinions  of  his 
own.  Said  the  judge,  "  Stop,  sir,  that  is  not 
authority  ;  that  is  your  judgment,  for  which  I 
have  great  respect,  but  it  is  not  authority." 

"  What  is  this  name,"  Judge  Allen  once 
asked  me,  looking  at  the  signature  of  Mr.  T. 
"  It  is  written  so  much  better  than  the  writing  I 
am  used  to,  I  don't  read  it  readily."     Any  one 


A   SAD    CASE.  95 

who  lias  seen  Mr.  T.'s  writing  will  appreciate 
this. 

There  was  at  one  time  a  gentleman  practicing 
at  our  bar  by  the  name  of  John  C.  A.,  a  graduate 
of  Harvard  and  a  fine  scholar. 

He  came  to  the  Suffolk  bar  with  brilliant 
prospects,  acquired  a  good  practice,  was  success- 
ful at  the  forum,  was  appointed  a  professor  at 
Harvard,  and  afterwards  went  to  New  York. 
While  there  he  became  very  unfortunate  in  his 
investments. 

A  friend  of  mine,  another  lawyer,  who  had 
left  Boston  and  gone  to  New  York,  told  me  that 
he  was  walking  one  day  on  Broadway,  when  a 
shabby-looking  person  met  him  and  said,  "  Let 
me  have  a  dollar,  I  am  starving." 

My  friend  said,  "  Who  are  you  ?  " 

"  Why,  don't  you  know  me  ?  I  'm  John  C. 
A." 

"  You  John  C.  A.  ?     It  can't  be." 

"  Yes,  I  am." 

My  friend  said,  "  I  shall  not  give  you  any 
money,  but  come  with  me."  He  took  him  to 
an  eating-house,  gave  the  proprietor  a  dollar, 
and  told  him  to  feed  the  man  until  it  was  gone. 

Afterward  A.  frequented  the  block  where  my 
friend  and  other  lawyers  were,  and  at  various 
times  obtained  small  sums.     My  friend  said  he 


90  RES   J  V  Die  AT. E. 

was  determined  to  follow  him  and  see  where  he 
went.  lie  did  so,  and  one  afternoon  followed 
him  all  over  the  city,  until  after  nine  o'clock  in 
the  evening,  when  A.  went  into  the  park,  and 
there  went  to  sleep.  About  a  week  after,  a 
man  supposed  to  be,  and  finally  identified  as, 
John  C.  A.,  was  found  on  a  wharf,  frozen  to 
death. 

When  Chief  Justice  Charles  Allen  was  judge, 
the  law  as  to  the  juries  was  different  from  what 
it  is  now.  They  were  known  as  the  first  and 
second  jury,  and  were  substantially  the  same 
men  through  the  entire  term.  At  the  end  of  a 
term  at  which  the  Chief  Justice  had  presided, 
he  thanked  the  first  jury  for  their  punctuality, 
attendance,  attention,  and  the  generally  satisfac- 
tory verdicts  which  they  had  rendered.  When 
he  had  finished,  he  said  to  the  other  jury,  "  Gen- 
tlemen, I  wish  I  could  say  the  same  to  you  ;  I 
think  you  could  have  done  better." 

Paul  Willard  to  witness :  "  Do  you  call  a 
horse  that  goes  lame,  all  right  ?  "  Witness  :  ""  I 
don't  understand  that."  Willard  repeated  the 
question,  and  got  the  same  answer.  Judge 
Ames,  presiding  then,  said :  "  Do  you  call  a 
horse  all  right  that  goes  lameV  Witness: 
"  Oh,  no,  sir." 


LOVE-LETTERS   IN   COURT.  97 

George  A.  Torrey  was  defending  a  suit  for 
"  breach  of  promise  of  marriage."  The  letters 
of  defendant  (the  man)  were  written  on  tele- 
graph blanks,  and  when  plaintiff's  counsel  began 
to  read  defendant's  letters  to  his  client,  he  com- 
menced, "  Dear  Laura."  Mr.  Torrey  objected, 
and  contended  that  the  whole  of  the  letters  must 
be  read.  Judge  Bacon  so  ruled,  when  plaintiff's 
counsel  read  as  follows  :  — 

New  England  Telephone  and  Telegraph  Com- 
pany. Telephonic  Message.  The  following 
message  has  been  transmitted  in  whole  or  part 
by  telephone,  subject  to  conditions  limiting  the 
liabilities  for  errors,  delays,  and  mistakes,  which 
have  been  agreed  to  by  the  sender,  and  under 
which  damages  can  in  no  case  be  recovered 
exceeding  the  tolls  paid  hereon,  nor  unless 
claimed  in  writing,  within  thirty  days  from 
sending  the  message. 

The  companies  over  whose  lines  it  has  been 
sent  do  not  guarantee  its  authenticity. 


Number 

Sent  by 

Time 

Received  by 

Check 

Dated, 

Received  at 

To 

IS 

8  

My  Darling  Laura,  etc. 
Read  the  Notice  at  the  Top. 


98  RES  judicata:. 

Hon.  George  T,  Bigelow,  aj)pointed  Judge  of 
Court  of  Common  Pleas  in  184G,  liked  to  have 
quiet  in  the  court  room.  A  lawyer,  Mr.  A., 
somewhat  of  a  theatrical  and  musical  critic,  who 
wrote  for  the  papers,  and  withal  something  of 
a  Bohemian,  becoming  once  a  little  set  up, 
came  into  the  court  in  this  condition,  and,  sit- 
ting at  the  table,  talked  loudly  with  another 
lawyer.  Judge  Bigelow  rapped  on  his  desk. 
Mr.  A.  paused,  but  soon  began  again,  when 
Judge  Bigelow  said :  "  Mr.  A.,  the  Court  notices 
you,  sir."  Mr.  A.,  rising,  and  steadying  him- 
self by  the  rail :  "  Yes,  may  it  please  your 
honor,  and  Mr.  A.  notices  the  Court." 

The  late  Chief  Justice  Bigelow  told  me  of  this 
mistake  he  made  while  traveling  West.  He 
always  had  a  restless  manner.  On  his  arrival  at 
a  hotel  in  St.  Louis,  he  saw  walking  around  the 
office  or  bar-room  a  well-dressed  man  whom  he 
took  to  be  the  landlord.  He  said  to  him,  "  I 
should  like  to  be  shown  to  my  room."  "  Don't 
be  in  a  hurry,"  replied  the  person  addressed ; 
"  sit  dowai  and  rest  yourself  a  few  moments." 
After  a  few  moments  the  judge  grew  impatient, 
and  said,  "I  must  be  shown  to  my  room,  sir, 
forthwith."  "  Oh,  be  patient,"  said  the  other  ; 
"it  will  all  be  ready  in  due  season."  In  a  few 
moments  another  person  appeared.  Taking  him 
for   the   clerk,  and    thinking   that   perhaps   he 


AN  AWKWARD   MISTAKE.  99 

might  expedite  matters,  lie  addressed  him  say- 
ing :  "  I  have  been  waiting-  here  some  time  to  be 
shown  to  my  room  according-  to  your  landlord's 
suggestion."  "  Why,  I  am  the  landlord,"  said 
the  newcomer.  The  judge  in  a  low  voice  said: 
"  Who  is  this  other  gentleman  ?  "  "  Why, 
that 's  General  Meade ;  let  me  introduce  you  to 
him."  Upon  which  he  was  introduced  and  apol- 
ogized to  the  general,  who  said,  "  It  is  a  matter 
of  no  consequence ;  I  saw  that  you  were  impa- 
tient, and  I  thought  you  had  better  have  time 
to  cool  ofP." 

At  the  adjournment  of  one  of  the  terms  of  the 
Court  of  Common  Pleas,  one  of  the  juries  pre- 
sented Judge  Henry  W.  Bishop  with  a  beautiful 
gold-headed  cane.  He  was  very  much  affected  ; 
tears  came  to  his  eyes,  and  he  said,  "  Gentlemen, 
all  I  can  say  is,  that  I  bid  each  of  you  an  affec- 
tionate farewell,"  and  he  shook  hands  with  every 
juror.  After  they  were  gone  he  said  to  me, 
"  Willard,  I  would  rather  have  that  cane  than  an 
inheritance  of  ten  thousand  a  year." 

During  Judge  Bishop's  term  of  office  a  case 
was  on  trial  in  which  the  plaintiff  sought  to 
recover  damages  for  the  destruction  of  a  portion 
of  his  house  by  the  explosion  of  a  gas-pipe.  A 
watchman  testified  that  he  was  in  this  house 
a  few  minutes  before    the  explosion,   and    that 


100  EICS   .lUDICATuE. 

wlu'u  lie  went  out   to  get  shaved,  it  occurred. 
Judge  Bishop  :  "  I  call  that  a  pretty  close  shave." 

The  vohime  of  Public  Statutes  having  been 
frequently  taken  from  the  judge's  desk,  Judge 
Lord  ordered  me  to  got  it  chained  to  the  desk, 
which  was  done.  Judge  Rockwell  came  in  with 
Chief  Justice  Brigham  one  day  when  the  court 
was  not  in  session,  and  said,  *'  I  tell  you,  Mr. 
Chief  Justice,  the  statutes  say  so  and  so."  Judge 
Rockwell  picked  up  the  statutes,  but  the  chain 
brought  him  up  before  he  could  get  away  from 
the  desk.  "  Mr.  Chief  Justice,"  said  he,  "  what 
is  that  for  ?  "  The  Chief  Justice  replied :  "  Lord 
ordered  that  to  be  done,  so  that  when  you  come 
here  to  preside,  you  can't  give  it  to  the  jur3^" 
Judge  Rockwell  had  once  done  so,  to  ^vhieh  the 
counsel  excepted  and  the  exceptions  were  sus- 
tained. 

The  first  time  I  was  ever  in  court,  and  this 
was  in  what  was  then  called  the  Justices'  Court, 
in  Boston,  a  man  was  brought  in  who  was  com- 
plained of  for  abusing  his  horse.  There  was 
no  S.  P.  C.  A.  then.  It  was  proved  tl^at  he 
hit  his  horse  on  the  head  with  the  butt  end  of 
his  whip,  causing  the  blood  to  flow  from  his 
mouth  and  other  places,  and  the  judge  called 
upon  him  for  his  defense.     He  arose  and  said  : 


A   LEARNED   JUDGE.  101 

"  If  I  had  time  I  could  prove  I  am  as  good  a 
teamster  as  there  is  in  Boston,  and  also  your 
honor  has  heard  some  evidence  that  the  horse 
was  contrary."  The  judge  leaned  his  head  on 
his  hand  for  a  moment,  then  rose,  saying: 
"  Prisoner,  there  is  no  mistake  but  what  you 
flogged  that  horse  severely,  but  the  horse  ought 
to  dnnvecl.  Discharge  him."  I  thought  if 
that  was  law,  I  would  like  to  stay  and  hear  a 
little  more  of  it,  or  at  all  events  get  some  more 
opinions  from  this  learned  judge. 

Another  man  was  complained  of  for  stealing 
a  buffalo  skin.  It  was  proved  that  he  took  it, 
and  wrapping  himself  up  in  it  went  into  a  shed 
and  lay  down  to  sleep.  "  Prisoner,"  said  the 
judge,  "why  did  you  take  that  skin?"  Pris- 
oner (shivering) :  "I  was  very  cold,  sir." 
"Shouldn't  you  have  taken  it  if  you  had  not 
been  cold?"  "No-o,  n-o,  no,  your  honor." 
"  Discharge  him,"  said  the  judge ;  "  the  intent 
takes  away  the  crime." 

During  that  summer,  to  wit,  the  summer  of 
1846, 1  became  acquainted  with  a  man  who  took 
daguerreotypes.  They  were  then  just  being 
introduced,  and  as  it  was  a  sort  of  experiment 
the  artists  were  willing  to  take  pictures  of 
noted  persons  to  hang  outside  of  their  doors 
as  a  sample  of  their  work. 

This  man  told  me  that  this  same  judge  walked 


102  REti  JUDICATyE. 

into  liis  room  one   day  and  said,  "  ISIr.  ,  I 

am  Mr.  Justice ,  of  the  Justices'  Court.     I 

understand  you  take  i)ietures  of  distinguished 
men  to  exhibit  to  the  public."  "Yes,  sir;  be 
kind  enough  to  take  a  chair.  How  wouhl  you 
like  to  be  taken ? "  "I  should  like  to  be  taken 
as  in  my  court  room."  "  Assume  your  attitude, 
sir,  and  tell  me  when  you  are  ready."  lie 
placed  himself  to  his  satisfaction,  and  looking 
very  stern  said,  pointing  his  finger  in  the  di- 
rection of  the  su})posed  criminal,  "Prisoner, 
where —  Take  me  7ioic^  sir."  He  was  taken, 
and  the  artist  then  said,  "  How  otherwise 
would  you  like  to  be  taken  ?  "  "  I  should  like 
to  be  taken  in  the  bosom  of  my  family  ;  John, 
bring  me  the  Bible."  The  artist  gave  him  a 
Bible.  He  opened  it  and  said  :  "  We  will  now 
read  the  92d  Psalm.  Take  me  vov\  sir." 
He  was  taken,  and  I  afterwards  saw  both  pic- 
tures hanging  at  the    entrance  door. 

I  lost  no  opportunity,  when  I  had  a  little  lei- 
sure, to  go  into  the  court  of  that  judge  and  hear 
trials  and  opinions.  On  one  occasion  there  was 
a  dispute  as  to  the  ownership  of  a  dog.  The 
evidence  was  so  conflicting  that  it  puzzled  the 
judge  extremely.  He  leaned  his  head  on  the 
desk  as  usual  for  a  few  moments  to  cogitate. 
Then  he  said  :  "  Mr.  Knapp  [the  clerk] ,  you 
hold  the  dog ;  plaintiff,  you  go  over  in  that  cor- 


NEITHER  PARTY.  103 

ner;  defendant,  you  go  over  in  the  other  corner; 
when  I  say  the  word,  each  of  you  call  the  dog." 
The  word  was  given,  and  both  parties  called  the 
dog.  Mr.  Knapp  loosened  his  hold,  but  the  dog, 
instead  of  going  to  either  of  the  supposed  own- 
ers, made  a  bee-line  for  the  door.  "  Mr.  Clerk," 
said  the  judge,  "enter  that  case,  neither  party." 
To  the  uninitiated  it  may  be  explained  that 
"  neither  party  "  means  that  neither  party  pre- 
vails, and  each  goes  out  of  court  as  he  came  in. 

A  witness  was  giving  his  testimony  in  a  very 
low  voice.  Mr.  Ranney  said,  "  Speak  up,  sir ; 
don't  be  so  modest."  Judge  Devens :  "  Mr. 
Ranney,  we  should  be  modest  in  all  things." 

Jud2:e  Huntlnjijton  said  he  should  receive  no 
petition  from  any  gentleman  to  be  admitted  to 
the  bar,  unless  he  stated  that  he  was  going  to 
practice  in  this  Commonwealth ;  that  it  had 
become  quite  a  fashion  to  get  a  certificate  of 
admission  from  a  Massachusetts  court  and  then 
go  West  and  practice,  imposing  duties  on  the 
court  which  they  ought  not  to. 

Mr.  B w  was  once  trying  a  case  before 

Judge  Huntington.  The  judge  stepped  out  for 
a  few  moments,  and  Mr.  B w,  in  his  argu- 
ment, told  the  jury  that  the  judge  was  un- 
friendly to  him.  The  judge  heard  of  it  before 
the  case  was  finished,  and  told  Mr.  B w  If 


104  RES   JUDICAT.E. 

he  had  heard  him  he  should  have  stopped  hiiu ; 
that  as  he  had  made  public  remarks  it  required 
public  apology ;  that  he  (Judge  Huntington) 
had  given  and  should  give  his  judgments  to  the 
best  of  his  ability.  This  brought  tears  to  Mr. 
B w's  eyes,  and  he  made  his  apology. 

In  the  Superior  Court  of  the  County  of  Suf- 
folk, when  some  witnesses  were  called  to  be 
sworn,  Judge  J.  G.  Abbott,  who  was  presiding, 
was  called  to  the  other  end  of  the  bench  to 
speak  with  a  person.  There  were  some  Jews 
among  the  witnesses,  and  the  opposing  counsel 
wished  them  sworn  in  Jewish  form.  This  was 
before  the  act  allowing  all  witnesses  to  be  sworn 
alike,  unless  they  request  to  be  sworn  in  a  dif- 
ferent manner.  I  told  the  Jews  to  get  their 
hats  and  put  them  on.  When  I  had  partially 
administered  the  oath,  Judge  Abbott  returned 
to  his  seat,  and  said :  "  Let  the  witnesses  re- 
move their  hats."  I  said  :  "  This  is  the  Jewish 
form  of  administering  the  oath."  "  Oh,  pro- 
ceed, then,"  said  the  judge.  One  of  the  Jewish 
witnesses  gave  his  testimony,  and  while  he  was 
being  cross-examined  the  judge  said  to  me, 
"  Did  you  notice  what  I  did  just  now  ? "  I 
said,  "  No,  sir."  He  said,  "  I  asked  that  Jew 
what  his  christened  name  was."  I  told  this  to 
Judge   Lord  on  a  similar  occasion,  and  he  said 


JEWISH    WITNESSES.  105 

to  me,  "  You  see  1  did  n't  do  it.     I  asked  him 
what  \\\s  first  name  was." 

At  one  impaneling  of  the  juries  about  half 
of  them  came  forward  with  the  excuse  that 
they  had  some  disease.  The  judge  was  much 
displeased,  and  in  stentorian  tones  said :  "  Mr. 
Clerk,  were  these  jurors  drawn  from  the  hos- 
pitals ?  Issue  a  new  venire,  and  have  a  lot  of 
healthy  men  drawn." 

A  case  came  up  one  afternoon  before  Judge 
Lord  in  which  John  H.  Butler  was  for  the 
plaintiff,  and  P.  H.  Hutchinson  for  the  defend- 
ant. Mr.  Butler  challenged  two  jurors,  accord- 
ing to  the  statutes.  There  were  only  two  super- 
numerary jurors  left  in  the  court  room.  I 
called  them  and  put  them  on  to  the  panel,  one 
of  them  being  Butler's  brother.  Butler  got  a 
verdict,  and  Hutchinson  moved  for  a  new  trial. 
Among  other  things  he  said  he  saw  telegraph- 
ing going  on  between  counsel  and  a  juror.  "  I 
did  n't  know  he  was  his  brother  until  after  the 
verdict."  Judge  :  "  You  've  answered  yourself. 
Now  you  said  you  saw  telegraphing  going  on : 
suppose  he  was  his  brother,  is  there  anything 
illegal  in  that?"  Hutchinson:  "Perhaps  not, 
but  it 's  indecent."  Judge  :  "  Well,  if  I  should 
set  aside  verdicts  because  the  counsel  were  in- 
decent, I  should  set  aside  a  good  many." 


106  RES  judicata:. 

Judge  Lord  told  me  this :  When  lie  was  at 
,  hearing  a  cause,  Judge  C.  was  counsel 


for  the  defense.  It  was  the  last  cause  to  be 
tried,  and  the  jury  were  out  some  time,  so 
that  the  judge  called  them  in  and  gave  them 
additional  instructions.  The  jury  agreed,  and 
Judge  C.  took  exceptions  to  the  charge  of 
Judge  Lord.  When  the  exceptions  came  on 
to  be  heard  before  the  Supreme  Court,  Judge 
C.  read  his  bill  of  exceptions,  and  the  Chief 
Justice  said:  "Mr.  C,  why  isn't  this  good 
law  ?  "  Judge  C. :  "  Perhaps  it  is,  your  honors, 
but  what  I  except  to  was  the  manner  of  that 
judge ;  for  no  pen  can  describe,  and  no  Garrick 
can  portray,  the  force  and  energy  with  which 
he  hurled  that  to  the  jury."  To  which  the 
Court  replied :  "  We  are  afraid  that  no  ex- 
ception lies  to  that." 

The  foreman  of  a  jury  told  Judge  Lord  that 
one  of  the  jury  was  drunk,  when  the  judge  said 
in  a  stentorian  voice,  "  Mr,  B.,  stand  up."  Mr. 
B.  rose,  and  grasped  the  rail  in  front  of  him 
to  steady  himself.  Judge :  "  Are  you  laboring 
under  a  physical  disability?"  Juror  (reel- 
ing) :  "  Not  if  I  knows  myself."  Judge  :  "It 
has  been  intimated  to  me  that  you  have  been 
indulging  too  freely  in  spirituous  liquors." 
Juror  :  "  I  guess  not."  Judge  :  "  Do  you  think 
you  can  try  a  case  intelligently  ?  "     Juror :  "  I 


LAW  AND   JUSTICE.  107 

guess  I  could  under  your  honor's  instructions 
in  ft  liquor  case."  Judge  :  "  Gentlemen  of  the 
jury,  is  Mr.  B.  intoxicated  ? "  Jurors  all : 
"  Yes,  sir."  Judge :  "  Mr.  B.,  take  yourself 
off  the  panel,  and  be  here  to-morrow." 

In   a   suit   of   a   lawyer  for  services,  J.  W. 

R s  was  very  pertinacious  in  trying   to  get 

in  certain  evidence.  Judge  Lord  said :  "  You 
want  to  put  in  some  evidence  that  by  and  by 
the  plaintiff  may  bring  a  suit,  and  that  you  '11 
not  be  obliged  to  pay  when  he  does  bring  it." 
In  the  same  case,  J.  W.  R s  was  endeavor- 
ing to  prove  that  the  plaintiff  ought  not  to  have 
certain  fees  because  he  put  a  certain  number 
of  questions  that  were  useless.  Judge  Lord: 
"  I  am  afraid  that  few  lawyers  would  get  their 
fees  if  they  were  prohibited  from  putting  useless 
questions." 

In  the  same  case  Newton  asked  the  defend- 
ant what  his  understanding  of  the  contract  was. 
Mr.  Wakefield  objected.  "  How  is  that  com- 
petent?" asked  Judge  Lord.  Newton:  "The 
parties  talked  over  the  contract  and  then  signed 
it,  so  that  the  contract  was  construed  differ- 
ently." Judge  :  "  Is  it  competent  ?  "  New- 
ton: "I  think  so."  Judge:  "As  a  lawyer?" 
Newton,  coloring :  "  Well,  as  a  matter  of  jus- 
tice." Judge  :  "  We  are  trying  law  cases  here, 
and  law  is  presumed  to  be  justice." 


108  RES  JUDICATA. 

The  same  jvidge  remarked,  when  hearing  a 
ease  one  day  in  which  both  parties  made  re- 
quests for  various  rulings,  from  which  it  was 
perfectly  evident  that  one  or  the  other  meant 
to  take  the  case  to  the  highest  court  in  any 
event,  "I  will  rule  so  and  so  [stating  it],  and 
you  can  take  it  up  to  that  tribunal  which  makes 
no  mistakes." 

Mr. met   him   one   day,   and   said :   "  I 

see,  Judge  Lord,  that   the  Supreme   Court  has 

overruled  you  in  the  case  of t's. ,  but 

you  need  feel  no  concern  about  your  reputa- 
tion." "No,"  he  replied,  "I  don't;  I'm  only 
concerned  about  the  reputation  of  the  Supreme 
Court." 

Judge  Lord  was  once  holding  the  Criminal 
Court,  and  at  recess  he  came  into  the  lobby, 
where  I  happened  to  be,  and  said,  "Willard, 
what  do  you  think  of  this?     You  know  little 

D ?     His  client  was  indicted  for  an  assault 

with  intent  to  commit  a  rape.  I  said  to  him, 
'  If  your  client  will  plead  guilty  to  an  assault, 
I  will  nol.  pros,  the  other,  as  I  think  he  is  non 
compos.'  Little  D.  answered,  '  I  don't  know 
about  his  being  non  compos,  your  honor,  but 
perhaps  he  has  not  the  intellect  of  your  honor 
or  myself.' " 

During  the  arguments  of  coiuisel  one  day. 
Judge  Lord  pointed  out  to  me  a  person  in  the 


LIMIT   OF  AN   OWNER'S  RIGHTS.         109 

audience,  and  said,  "  He  was  one  of  a  lot  who 
came  into  my  room  to  haze  me  while  I  was  in 
College.  I  had  thought  of  it  beforehand,  and 
when  they  came  in,  I  gave  them  wine  with 
ipecac  in  it,  which  made  them  all  sick."  I  told 
him  it  reminded  me  of  a  certain  rich  merchant 
of  Boston  who  missed  his  wine  from  the  cellar, 
and  thereupon  put  some  ipecac  into  some  of  the 
bottles.  Shortly  after,  one  of  his  servants 
became  very  sick,  and  after  recovering  brought 
an  action  against  the  merchant,  who  settled  it 
by  paying  one  thousand  dollars,  upon  the  ad- 
vice of  distinguished  counsel.  Judge  :  "  Why 
shouldn't  he  put  ipecac  into  his  own  wine?" 
"  Do  you  think,"  I  said,  "  that  you  have  a  right 
to  put  what  you  choose  into  your  own  wine, 
even  if  you  put  it  under  lock  and  key?" 
Judge:  "Why  not?"  I  rejilied  :  "Don't  you 
think  if  you  were  to  put  arsenic  into  your  own 
wine  and  lock  it  up  and  it  should  be  stolen,  and 
a  number  of  persons  killed  in  consequence,  that 
if  it  could  be  proved  that  you  put  it  in  you 
might  be  indicted  for  murder  ?  "  Judge  :  "  I 
should  like  to  think  of  that." 

The  following  conversation  took  place  between 
Mr.  B.  and  Judge  Lord  :  — 

Mr.  B.  "  And  as  to  your  honor's  power  to 
cut  and  slash  this  judgment  just  as  you  choose." 
Judge  :    "  Is  n't  this   the  law  ?  "  (illustrating.) 


110  RES  JUDICAT.'E. 

Mr.  B. :  "  That  was  a  vague  and  floating  idea 
in  the  minds  of  some  judges."  Judge  (stating 
a  case).  Mr.  B. :  "  Your  honor  has  stated  it 
correctly."  Judge:  "Isn't  it  so  and  so?" 
(again  illustrating.)  Mr.  B.  :  ''  Oh  no,  I  '11 
show  you  you   are   mistaken  in  that  too." 

At  the  conclusion  of  it  I  said  to  the  judge 
that  I  should  not  think  he  would  like  that  style 
of  address.  Judge :  "  It  rather  amuses  me 
than  otherwise." 

In  1867  the  Legislature  inquired  as  to  the 
expediency  of  reducing  the  number  of  judges 
in  the  Superior  Court.  I  mentioned  it  to  Judge 
Lord,  and  asked  him  if  he  thonght  it  woukl 
pass.  "  No,"  said  he,  "  there  are  too  many  of 
them  up  there  that  want  to  be  judges,  to  have 
that  go." 

Mr.  Pearson  got  a  client  of  Abiel  Abbott's 
defaulted  for  not  answering  interrogatories. 
Abbott  came  before  Judge  Lord  to  have  the 
default  taken  off,  and  said  :  "  My  client  has 
filed  an  affidavit  of  defense,  and  an  answer, 
and  I  think  it  hard  that  he  should  be  defaulted 
for  not  answering  interrogatories  when  he 
does  not  know  what  they  are.  He  is  out  of  the 
State,  and  I  have  endeavored  to  find  him  for 
three  weeks."  Pearson :  "  Mr.  Abbott  does  not 
know  where  his  client  is  and  never  will.  I 
think  the  default  ought  to  stand."    Judge  :  "  Mr. 


ANECDOTES    OF  JUDGE   LORD.  Ill 

Abbott,  have  you  made  search  for  your  client  ?  " 
"  Yes,  sir,  for  three  weeks."  Judge  :  "Well,  if 
you  can't  find  him,  let  the  plaintiff  search  for 
him  on  the  execution,  and  if  he  catches  him  he 
will  be  in  here  for  a  review,  and  then  we  can 
hear  him." 

John  G.  Locke  was  one  of  the  alien  commis- 
sioners. He  was  by  some  called  "  Shyloek." 
In  a  suit  which  he  had  brought,  a  party  was 
put  upon  the  stand  to  testify  who  did  not 
miderstand  English.  Mr.  Locke  produced  an 
interpreter,  to  whom  the  opposite  counsel  (Mr. 
Paine)  objected,  on  the  ground  that  he  was 
friendly  to  the  plaintiff.  Mr.  Paine  then  pro- 
duced one  to  whom  Locke  objected,  on  the 
ground  that  he  was  a  relative  of  the  defendant. 
Judge  Lord  :  "  Swear  them  both,  and  they  will 
correct  each  other." 

Mr.  E.  H.  Abbott  was  arguing  a  case  before 
Judge  Lord,  as  to  a  return  of  an  officer  upon 
an  execution.  Judge :  "  I  think  this  levy  is 
wrong."  Abbott :  "  It  was  made,  your  honor, 
by  a  deputy  sheriff  of  twenty  years'  experience, 
who  had  always  done  so."  Judge :  "I  have 
practiced  law  for  twenty  years,  but  I  make  a 
great  many  mistakes." 

John  McClellan  was  summoned  as  a  juror, 
and  when  called  offered  as  an  excuse  that  he 
was  a  member  of  the  Ancient  and  Honorable 


112  RES  judicata:. 

Artillery,  and  produced  his  certificate  of  mem- 
bersliip  (that  being  a  statutory  excuse  from 
serving  on  the  jury).  Judge  Lord  :  "  Did  you 
ever  turn  out?"  "Yes,  sir,"  said  McClellan. 
Judge:  "When  did  you  do  duty  last?"  Mc- 
Clellan :  "  At  Faneuil  Hall  last  17th  of  June, 
with  a  knife  and  fork."  Judge :  "  You  can 
go,  sir." 

Robert  C.  Apthorp  was  also  sunnnoned  as 
juror.  He  said  he  was  a  member  of  the  bar. 
"  Did  you  ever  practice  ?  "  asked  Judge  Lord. 
"  When  I  had  a  chance,  sir."  While  the  judge 
was  thinking  of  it,  Mr.  Apthorp  said :  "  I  am 
over  sixty-five  years  of  age."  "  Why  did  n't  you 
say  that  first  ?  "  said  the  judge  ;  "  you  can  go." 

A  Mr.  Converse  was  summoned  as  a  juror. 
He  said  :  "  Judge,  I  think  I  ought  to  be  ex- 
cused. I  have  business  here  and  there,  am  over- 
whelmed with  it,  and  my  physician  says  I  ought 
to  have  a  change."  "  Well,  this  will  be  a 
change,  and  will  do  you  good." 

Another  able-looking  man,  I  forget  his  name, 
when  summoned  as  a  juror,  said  :  "  Judge,  if 
you  keep  me  here  as  juror  you  will  stop  five 
hundred  men  from  work."  "  What  is  your 
business  ? "  "I  am  a  contractor  for  driving 
piles,  and  am  driving  them  in  different  parts  of 
the  city."  "  Well,  sir,"  said  Judge  Lord, 
"  suppose  you  had  a  pile-driving  case  against 


EXCUSES    OF  JURYMEN.  113 

you  in  this  court,  and  I  should  summon  in 
twelve  loafers  to  try  your  case,  how  should  you 
like  it  ?  "  .  He  took  his  seat. 

A  certain  lawyer  was  cross-examining  a  wit- 
ness at  a  tedious  length,  when  Judge  Lord 
remarked,  "  I  think  you  have  gone  far  enough." 
Said  the  lawyer,  "  I  should  like  to  go  a  little 
farther  and  show" —  '"Oh,  well,"  said  the 
judge,  "  go  on."  The  judge  walked  forward 
and  back  with  his  hands  behind  him,  patiently, 
for  some  minutes,  and  at  last  exclaimed,  "  There, 
you  can  stop,  sir ;  you  've  hurt  your  case  more 
than  the  other  side  has." 

Counsel  was  once  very  persistently  following- 
up  a  long  and  tiresome  cross-examination,  when 
the  judge  interfered,  and  said  much  of  it  was 
immaterial.  The  counsel  replied  that  it  was  his 
right.  "  Oh,  yes,"  said  Judge  Lord,  "  it  is  your 
right,  but  if  every  one  insisted  upon  having 
his  rights,  what  an  unhappy  world  this  would 
be." 

S.  T.,  who  was  quite  deaf,  was  trying  a  case  be- 
fore Judge  Lord.  Judge  (illustrating)  :  "  Sup- 
pose you  had  put  your  money  under  a  stone  ?  " 
T.  (muttering)  :  "  I  don't  know  what  you  do  in 
Salem,  but  in  Boston  we  don't  put  money  under 
a  stone."  Judge  (in  a  stentorian  voice)  :  "  If 
your  infirmity  is  so  great  that  you  cannot  hear, 
you  might  at  least  have  the  grace  to  be  ci\dl." 


114  RES  JUDICATA. 

T.  (softly,  with  his  hand  to  his  ear)  :  "  What 
did  your  honor  observe  ?  " 

Mr.  John  C.  Park,  in  one  case,  said  he  thought 
on  certain  evidence  that  it  was  a  mixed  question 
of  law  and  fact.  Judge  Lord :  "  I  thought  so 
too,  until  I  was  overruled  by  the  Supreme 
Court ;  and  though  I  think  they  are  inclined  to 
modify  their  ruling,  the  modification  must  come 
from  that  court  and  not  from  this." 

Judge  Lord  was  once  hearing  the  excuses  of 
jurymen,  when  the  following  occurred:  Jury- 
man :  "  If  I  am  kept  here  my  employer  will  dis- 
charge me."  Judge :  "  If  you  have  an  employer 
who  threatens  to  discharge  you  because  you 
comply  with  the  law,  you  ought  to  be  thankful 
you  are  rid  of  such  an  employer.  Send  him 
here,  and  let  us  see  if  he  will  say  that  to  me.'''' 

A.  R.  Brown  called  a  witness  to  prove  a  paper 
to  which  he  had  subscribed  his  name  as  a  wit- 
ness. Witness  :  "  I  can't  tell  who  signed  it." 
Judge  Lord :  "  Your  paper  was  proved  a  little 
while  ago,  and  now  it  is  not  proved."  Brown : 
"  Well,  I  guess  I'll  get  along."  Judge :  "  Yes, 
time  will  carry  us  all  along." 

I  said  once  to  Judge  Lord :  "It  seems  to  me 
that  the  declaration  in  this  case  is  very  unskill- 
fully  drawn,  I  can  see  no  consideration  stated 
for  the  alleged  promise  of  conveyance  of  the 
land,  by  the  defendant  to  plaintiff."     Judge: 


MR.   SUPERFLUOUS  LAGS.  115 

"  Probably  the  want  of  skill  in  that  case  is  the 
highest  skill,"  "  That  is  to  say,  if  the  declara- 
tion was  drawn  by  a  skillful  pleader,  he  would 
have  had  no  case  ?  "     "  Yes." 

Judge  Lord,  while  holding  the  Equity  Court, 
became  faint,  so  that  he  was  obliged  to  leave  the 
room.  Sitting  with  his  feet  at  the  fire,  having 
partially  recovered,  he  looked  around  as  was  his 
wont,  and,  raising  himself  by  his  hands  on  the 
arm-chair,  said :  "  I  should  like  to  know  what  all 
this  means "  (rising  still  higher),  "  whether  I 
am  Mr.  Superfluous  Lags  ?  "  (reflecting  aloud), 
"Superfluous  lags  the  veteran  on  the  stage." 
(Rising  to  his  feet  and  extending  his  hand.) 
"  If  I  had  more  money,  I  would  quit  this  stage 
and  travel."  No  words  can  portray  his  manner. 
Nothing  could,  except  an  intimate  acquaintance 
with  him. 

In  the  somewhat  celebrated  libel  case  of  Dal- 
ton  vs.  Dalton,  before  Judge  M.  and  a  jury  in 
the  Supreme  Court,  Mr.  G.,  the  father  of  Dal- 
ton's  wife,  was  in  the  court  room,  and  I  said  to 
him,  "  Mr.  G.,  will  there  be  a  divorce  here  ?  " 
"  Oh,  no,"  he  said,  "  there  's  been  condiment 
here,  and  as  for  Nelly  (Mrs.  Dalton),  she 's 
been  the  least  licentious  of  all  my  daughters." 
During  this  trial  Mrs.  Dalton  fainted,  and  the 
court  adjourned  to  the  next  day.     Mr.  R.  H. 


116  HES   JUDICATA^.. 

Dana,  who  was  counsel  for  Dalton,  liad  one  of 
his  strongest  points  ruled  out  by  Judge  M.  in 
this  wise.  Mr.  Dana  produced  a  letter  which 
he  said  was  a  confession  of  Mrs.  Dalton.  There 
were  some  erasures  in  the  letter.  Mr.  Dana 
asked  a  witness, "  Did  you  see  Mrs.  D.  write 
it?  "  "  Yes,  sir."  "  Did  you  give  it  to  Dalton ?  " 
"  Yes,  sir."  "  Did  you  see  Mrs.  Dalton  make 
the  erasures?"  "No,  sir;  but  they  were  there 
when  I  gave  it  to  Dalton."  The  witness  then 
left  the  stand,  and  Mr.  Dana  offered  to  put  the 
letter  into  the  case.  Mr.  Choate  objected,  be- 
cause, he  said,  in  the  way  in  which  it  was  left, 
the  inference  was  that  the  witness  made  the 
ei'asures,  and  he  objected  to  have  the  witness 
recalled  to  say  whether  he  made  them  or  not. 
Judge  M.  sustained  Mr.  Choate,  to  the  surprise 
of  Mr.  Dana,  and,  as  Mr.  Dana  afterwards  said 
to  me,  "  to  my  consternation."  On  mentioning 
this  to  an  ex-judge  he  said,  "  I  am  not  sur- 
prised ;  I  never  would  try  a  case  before  him,  he 

is  so dishonest."     A  gentleman  said  to  me, 

if  a  stranger  had  stepped  into  the  court  room 
a  few  moments  he  would  have  thought  that  it 
was  the  counsel  for  respondent  arguing  his  case 
from  the  bench. 

Chief  Justice  Charles  Allen  told  me  this :  A 
person  once  called  at  the  office  of  Mr.  Merrick 
in  Worcester  and  asked  him  what  the  law  was 


A    VERY  LARGE   DOG.  117 

in  a  certain  case.  This  was  before  Jiulge  Mer- 
rick came  to  the  bench.  Mr.  Merrick  told  him. 
The  client  said :  "  Mr.  Allen  says  it  is  so  and 
so,"  which  was  quite  different.  Mr.  Merrick 
said  :  "  Come  in  again  in  an  hour  and  I  '11  look 
up  the  law."  When  the  client  returned,  Merrick 
said  :  "  I  've  looked  up  all  the  law  on  this  sub- 
ject, and  I  don't  see  any  reason  to  change  my 
opinion,  but  if  Charles  Allen  says  "  —  "  Oh 
no,"  exclaimed  the  client,  "  not  Charles  Allen, 

—  Sam   Allen."     "D Sam   Allen,"   said 

Merrick,  and  threw  the  book  across  the  floor. 

Mr.  S.,  having  argued  his  case  to  the  jury, 
said  that  the  law  would  be  given  them  by  the 
Court,  and  that  the  Court  would  rule  so  and 
so  (stating  it).  When  he  had  finished,  Judge 
Morton  said :  "  The  Court  will  not  rule  as  you 
have  stated,  Mr.  S.,  but  more  favorably,  as  I 
think  you  have  misapprehended  the  law  against 
yourself." 

A  person  carried  off  a  very  valuable  dog  be- 
longing to  Mr.  ,  a  client  of  Mr.  Dabney. 

Mr.  Dabney  could  not  get  at  the  dog  to  replevy 
him,  so  he  brought  a  bill  in  equity  in  the  Su- 
preme Judicial  Court  to  obtain  him.  After  Mr. 
Dabney  had  I'ead  his  bill  and  stated  his  case. 
Chief  Justice  Morton  asked  him  if  he  did  not 
think  it  was  beneath  the  dignity  of  the  Supreme 


118  RES   JUDICATyE. 

Judicial  Court,  and  whether  he  thouglit  it  proper 
for  them  to  hear  a  bill  in  ecjuity  about  a  dog. 
Mr.  Dabney  :  "  Yes,  your  honor,  I  do  think  it  is 
proper  in  this  case,  for  it  is  a  very  large  dog." 
Judge  :  "  Very  well,  proceed."  And  Mr.  Dab- 
ney got  his  dog. 

Judge  Morton  tried  a  cause  in  which  a  former 
member  of  the  bar  was  defendant.  I  will  call 
him  Jones.  It  was  a  suit  on  a  bond  which  Jones 
had  drawn,  and  he  was  one  of  the  sureties  on  it. 
He  came  into  court  and  defended  his  own  bond 
on  the  ground  that  the  condition  was  not  valid. 
Judge  Morton  told  him  that  he  (Jones)  almost 
merited  the  contempt  of  the  Court ;  for  although 
he  might  not  be  compelled  by  law  to  pay  it, 
there  was  no  reason  why  he  should  not ;  and  after 
some  consideration  the  Court  rendered  judgment 
against  him. 

A  juror,  wishing  to  get  excused  before  Judge 
Nash,  brought  in  a  certificate  from  a  physician 
that  the  juror  had  a  bilious  diai'rhoea,  and  bil- 
ious was  spelled  "  billions."  Judge  Nash  said  : 
"  Bilious  with  a  double  1,  —  many  men  are  trou- 
bled with  that ;  let  him  go  a  fortnight." 

Judge  Nash,  after  examining  the  certificate  of 
character  of  an  applicant  for  admission  to  the 
bar,  said :  "  Let  him  sign  the  roll."  In  doing 
so,   the   young   man   was   so   agitated   that  he 


A   SEEDY  LOCO.  H^ 

dropped  a  penf  ul  of  ink  upon  the  record.  Judge 
Nash  called  up  Mr.  Gooch,  in  whose  office  the 
young  man  had  been  a  student,  and  said  :  "  Mr. 
Gooch,  you  have  certified  that  this  young  man 
was  of  good  character,  yet  there  is  a  very  obvious 
blot  upon  his  name." 

Sidney  Willard  was  occupying  a  chair  in  the 
court  room,  and,  having  left  it  for  a  moment, 
"William  E.  Parmenter,  now  Chief  Justice  of 
the  Municipal  Court,  came  in  and  took  the  seat. 
Willard  returned  in  a  few  minutes,  and  said  to 
Parmenter:  "  Cede  loco.""  Parmenter,  being 
an  old-fashioned  Democrat,  who  was  called  a 
loco-foco,  replied  :  "  This  is  too  bad ;  I  thought 
I  came  in  here  looking  quite  respectable,  and 
here  I  am  called  a  seedy  loco." 

An  anecdote  was  told  me  by  my  predecessor 
in  office,  about  Chief  Justice  Parsons.  One 
day  he  was  holding  court,  and  his  nejjhew  was 
one  of  the  jurors.  The  court  took  a  regular  in- 
termission from  one  to  two  o'clock,  and  when 
the  Court  came  in,  the  nephew  did  not  appear 
for  half  an  hour.  Then  he  came  in  quite 
breatldess.  Judge  Parsons  said  to  him  :  "  Mr. 
Juror,  what  is  your  excuse  for  keeping  the 
Court  and  officers  and  twenty-three  jurors  wait- 
ing an  hour  ?  "     The  juror  said,  "  May  it  please 


120  RES  JUDICATJE. 

your  honor,  after  dinner  I  sat  down  and  acci- 
dentally fell  asleep,  but  as  soon  as  I  woke  I 
came  with  all  the  speed  I  could."  "  Mr.  Clerk," 
said  the  Chief  Justice,  "  fine  him  ten  dollars." 
"  I  did  not  dream  of  that,"  said  the  juror. 
"  You  may  remit  the  fine,"  said  the  Chief  Justice. 

The  Honorable  Robert  C,  Pitman  was  an 
excellent  judge.  He  was  fair,  impartial,  and 
just,  and  if  at  first  he  took  a  different  view,  he 
had  no  such  pride  of  opinion  that  he  could  not 
be  convinced,  and  was  ready  to  yield.  No  man 
had  better  commantl  of  the  King's  English,  and 
no  man  was  more  choice  and  fluent  in  the  use 
of  it.  His  charges  to  the  jury  were  models  of 
graceful  diction,  clear  illustrations,  and  pure 
unadulterated  English.  He  was  square  and 
honest  in  his  allowance  of  exceptions  to  his 
rulings,  and  I  never  heard  it  said  that  he 
dodged  in  the  least.  His  one  great  foible  in 
the  course  of  trials  w^as  that  of  uttering  his 
thoughts  aloud,  which  were  often  exceedingly 
cutting,  and  like  a  bucket  of  cold  water  over  a 
neophyte,  not  to  mention  those  sinners  more 
hardened.  A  messenger  came  in  one  morning 
to  Judge  Pitman  and  said,  "  Can  your  honor 
see  Mr.  B.  L.  ?  "  The  judge  replied,  "  Yes  ; 
my  eyesight  is  good ;  I  think  I  can  see  him  very 
well." 


A   FEMININE  DERRICK.  121 

At  a  term  in  1883,  we  liad  five  disagreements 
of  juries  in  a  fortnight,  more  than  I  ever  knew 
in  a  whole  term  of  three  months.  Judge  Pit- 
man addressed  the  jurors,  and  said  to  them  : 
"  Gentlemen,  if  there  are  any  men  among  you 
who  think  they  are  unfitted  by  temperament  or 
otherwise  to  agree  upon  anything,  I  will  hear 
application  for  excuse,  for  you  stop  the  course 
of  public  business,  and  you  are  the  most  im- 
practicable jurors  I  ever  saw." 

There  was  a  major  in  the  army  during  the 
war  of  the  Rebellion,  who  was  also  commander 
of  a  battery  commonly  known  as  lig/d  artillery. 
After  the  war  was  over  he  became  a  lawyer. 
In  an  equity  case  before  Judge  Pitman,  the  judge 
asked  the  parties  whom  they  were  to  have  for 
a  master  in  the  case.  One  of  the  parties  sug- 
gested the  major.  Judge  :  "  I  should  think, 
gentlemen,  that  there  should  be  a  master  in  this 
case  of  larger  calibre" 

A  witness,  speaking  of  a  derrick,  said,  "  She 
was  down  and  broken  up."  Judge  Pitman : 
"  Who  was  She  ?  "  Witness  :  "  The  derrick, 
sir  ;  we  alius  calls  her  She."  Judge  Pitman  : 
"  Very  curious ;  it  seems  to  me  to  be  a  mascu- 
line article." 

Judge  Pitman  was  asked  to  hear  some  mo- 
tions one  afternoon  after  four  o'clock,  and  when 
the  jury  had  been  dismissed;  he  said,  "No,  I 


122  RES   JUDICATjE. 

am  quite  content  with  my  day's  work;  I  don't 
care  to  hear  motions  by  way  of  dessert." 

lie  was  once  liearing  a  case  o£  conversion  of 
goods  in  a  liquor  store,  in  which  both  parties 
were  of  foreign  birth.  Counsel :  "  What  were 
the  profits  per  day  ?  "  Plaintiff :  "  About  seven 
dollars."  Counsel :  "  What  were  the  receipts  ?  " 
Judge  Pitman  :  "  Probably  there  was  n't  much 
difference  between  the  receipts  and  the  profits." 

Mr.  M.  F.  Dickinson,  defending  a  case  of 
Brown  against  the  West  End  Railroad,  said  to 
the  jury :  "  Now,  gentlemen,  it  is  customary  to 
put  what  is  called  an  ad  danmuni  into  the  writ ; 
Mr.  Stearns  brought  this  writ  and  j^ut  his  ad 
damnum  at  three  thousand  dollars,  and  it  is 
generally  supposed  the  ad  damnum  is  double 
the  amount  which  it  is  expected  the  plaintiff 
will  recover."  "  Oh,  no,"  said  Stillman  B.  Al- 
len. "  Well,  then,"  said  Dickinson,  "  three  times 
the  amount.  But,"  he  continued,  "when  bro- 
ther Allen  got  into  this  case,  he  got  this  amend- 
ment, [showing  it  to  the  jury,]  increasing  the 
ad  damnum  to  six  thousand  dollars."  When 
the  case  was  finished,  it  was  somewhat  late  in 
the  afternoon,  and  Mr.  Dickinson,  wishing  to 
close  the  arguments  that  day,  said  he  would 
talk  forty  minutes  and  give  Mr.  Allen  one 
hour  ;  but  Mr.  Allen  claimed  to  be  tired,  and 
wanted  to  come  in  the  next  day.     Judge  Pit- 


DUTIES   OF  A   JURY.  123 

man :  "  No,  sir ;  you  have  chosen  to  be  junior 
and  senior,  and  with  your  great  ability,  and  Mr. 
Dickinson  only  forty  minutes,  you  ought  to  be 
satisfied  with  an  hour."  Mr.  Allen :  "  After 
such  a  compliment,  I  have  nothing  to  say." 
Judge:  "I  don't  think  I  am  entitled  to  any 
thanks." 

In  addressing  a  jury  as  to  their  general 
duties,  Judge  Pitman  once  told  them :  "  Gentle- 
men, there  may  be  large  cases,  and  there  may 
be  small ;  some  five  dollars,  and  some  five  thou- 
sand dollars,  and  the  law  does  not  presume  that, 
however  difficult  a  case  may  be,  a  jury  is  not  to 
agree,  and  keep  the  parties  in  misery,  and  sup- 
port an  army  of  lawyers  during  their  natural 
lives ;  but  you  come  here  to  agree  and  settle  the 
cases  in  which  the  parties  are  in  dispute." 

Mr.  T.  M.  Babson,  in  an  action  against  the 
city  of  Boston  brought  by  Mr.  Gargan,  called  as 
witnesses  for  the  city  a  number  of  policemen. 
Mr.  B.  said,  "  As  they  are  not  under  city 
influence  or  control,  they  should  be  believed. 
Brother  Gargan  has  more  influence  over  them 
than  I,  as  he  is  in  political  life,  and  I  am  not." 
"  Oh,  no,"  said  Gargan,  "  I  am  out  of  it."  Mr. 
Babson  was  going  to  comment  on  that,  when 
Judge  Pitman  remarked,  "  Oh,  Mr.  Babson, 
forgive  him  for  his  past  sins,  as  long  as  there  is 
repentance." 


124  RES  judicata:. 

Mr. brought  an   action  against  the  Old 

Colony   Railroad,   and  this   is  his    declaration: 

"  The   plaintiff   says   that   on   the day  of 

,  18 — ,  he  was  a  passenger  on  one  of  the 

defendant's  trains  from  Boston,  which  reached 
Quincy  about  two  o'clock  in  the  afternoon ; 
and  that  while  in  the  exercise  of  due  care  he 
received  severe  personal  injuries  by  reason  of 
the  defendant's  negligence  and  the  gross  negli- 
gence of  its  employees  upon  said  train,  and  at 
said  station  after  alighting  from  said  train,  and 
while  in  the  act  of  leaving  defendant's  station 
and  premises  at  said  Quincy."  Before  the 
trial  I  read  it  and  said  to  Mr.  Benton,  "Why 
did  n't  you  demur  ?  "  He  said  he  had  rather  ob- 
ject to  the  evidence.  Mr. read  his  declara- 
tion to  the  jury,  and  Judge  Pitman  asked, "  What 

sort  of  a  declaration  is  this  ?  "     Mr. said, 

"  I  think  it  is  sufficient."  "  I  think  not,"  said 
the  judge,  and  read  the  Practice  Act,  which 
states  that  the  cause  shall  be  set  forth  accord- 
ing to  the  circumstances  in  each  case.     "  Why 

did  n't  he  demur  ?  "  said  Mr. .    Judge  :  "  He 

had  rather  lie  in  wait  and  spring  upon  you,  not 
in  a  tiger-like  fashion,  but  demolish  you  all  the 
same.  You  may  amend,  but  I  shall  not  try  it 
under  that  declaration,  for  I  never  saw  one  like 
that  before." 

Mr.  W.  E.   Russell  to  a  physician  :  "  Sup- 


,•1    SEVERE   BILIOUS   ATTACK.  125 

pose"  (stating  the  accident),  "would  that  be 
sufficient  to  cause  physical  and  mental  derange- 
ment?" Doctor:  "  It  mio-ht  be."  Mr.  Kussell : 
"  And  if  so,  how  long  would  it  continue  ?  "  Doc- 
tor :  "  No  man  can  tell."  Mr.  Kussell :  "  Would 
it  be  likely  to  follow  him  to  his  grave  ?  "  Judge 
Pitman  :  "  He  might  die  to-morrow." 

Mr.  Donnelly  had  a  case  marked  for  a  certain 
day,  and  when  it  was  reached  the  young  man 
in  his  employ  came  in  and  said,  "  Mr.  D.  would 
like  this  case  postponed  a  day  or  two,  as  he  has 
a  severe  bilious  attack."  Mr.  Swasey :  "  I  will 
consent,  though  I  have  had  my  witness  here  two 
days."  Judge  Pitman :  "  Seems  to  me  I  have 
heard  of  this  before  ;  is  Mr.  Donnelly  going  to 
be  bilious  all  the  spring  ?  " 

A  case  was  on  trial  in  which  a  druggist  was 
sued  for  giving  wrong  medicine,  whereby  a  child 
was  made  dangerously  ill.  The  defendant  testi- 
fied that  he  had  two  places  of  business,  and  the 
store  where  this  recipe  was  put  up  was  carried 
on  by  his  clerk.  G. :  "  How  long  had  he  been 
in  your  employ?"  Witness:  "About  four 
years."  G. :  "  He  managed  this  store  for  you  ?  " 
Witness  :  "  Yes."  G.  :  "  How  often  did  you  visit 
the  store?"  Witness:  "Two  or  three  times  a 
day."  G. :  "  You  held  out  this  clerk  as  your 
agent,  did  n't  you  ?  "  The  witness  hesitated. 
G.  repeated  his  question.     Judge  Pitman  :  "Of 


126  liES   JUDICAT.E. 

course  he  held  liim  out  if  lie  put  him  there  ; 
no  need  of  asking  that;  he  wasn't  obliged  to 
put  a  sign  on  him." 

In  giving  instructions  to  a  juiy  as  to  one  who 
might  or  might  not  be  liable,  and  as  to  an  im- 
plied contract,  Judge  Pitman  remarked :  "  I 
suppose  if  a  physician  comes  to  j^our  house  to 
visit  a  sick  person,  he  need  not  hang  out  his 
banner  that  he  expects  pay,  for  we  all  know  that 
to  be  '  an  implied  contract ; '  but  when  a  nurse 
comes,  if  you  don't  wish  to  have  j^our  pocket- 
book  all  gone,  it  would  be  well  to  ascertain  how 
much  she  expects  to  be  paid." 

In  calling  the  list  once,  I  called against 

,  Mr.  A.  for  the  plaintiff,  Mr.   B.  for  the 

defendant.  Mr.  A.  answered, "  I  am  ready." 
I  said,  "  Mr.  B.  has  been  sent  for  and  the  officer 
can't  find  his  office."  A  member  of  the  bar : 
"  He  has  no  office."  Judge  Pitman  :  "  A  lawyer 
without  an  office?  He  might  as  well  be  '  A  man 
without  a  country.' " 

A  number  of  cases  were  called  in  which  all 
the  lawyers  were  present,  but  no  clients  or  wit- 
nesses. Judge  Pitman  :  "  It  is  strange  how  law- 
yers neglect  to  have  their  clients  and  witnesses ; 
they  are  so  much  better  off  here  than  anywhere 
else." 

A  party  keeping  a  restaurant  was  sued  for  a 
milk  bill.     He  complained  that  the  plaintiff  left 


AN   OFFICER    IX   COLLEGE.  127 

him  sour  milk,  and  tliat  one  day  the  chowder 
ami  })iuldings  were  all  sjxjiled  ;  he  said  he,  felt 
like  shutting  uj^  the  concern.  Judge  Pitman : 
"  Your  internal  emotions  we  don't  care  about  ; 
what  did  you  say  to  the  i)laintiff?" 

0'Lau<;hlia  broiij>lit  a  suit,  for  a  woman, 
against  the  city,  for  damages  by  reason  of  inju- 
ries from  a  fall  on  the  ice.  He  asked,  ''  What 
is  your  name  ?  "  "  Margaret  McFall."  "Where 
do  you  live  ?  "  "  Sixty,  North  Street."  "  How 
many  children  have  you?  "  Judge  Pitman 
(quickly)  :  "  What  has  that  to  do  with  the  case, 
whether  she  has  one  or  fifteen  ?  Ask  her  as 
well,  what  is  the  natural  history  of  Ireland." 

A  person  summoned  as  a  juror  asked  to  be 
excused,  as  he  was  an  "■  officer  in  college,"  and 
the  statute  exempts  people  who  come  under  that 
description.  Judge  Pitman  :  "  Officer  in  a  col- 
lege? what  college?"  Juror:  "Harvard  Col- 
lege, sir  ;  the  Arnold  Arboretum,  or  Bussey  In- 
stitute, which  is  a  part  of  Harvard."  Judge : 
"  Ah,  let  us  see  ;  I  should  like  to  hold  on  to  you ; 
you  are  the  men  who  shirk  your  duty."  Juror : 
"  1  don't  wish  to  shirk  any  duty,  but  I  have  a 
duty  towards  the  college  and  my  pupils,  and  it 
will  be  hard  for  me  and  my  pupils  if  kept  here." 
Judge  :  "  No  harder  than  for  a  peanut  vender." 

Mr.  Bryant  made  a  motion  for  continuance, 
as  a  case  was  about  to  be  reached  for  trial,  on 


128  RES   JUDICATjE. 

the  gromul  tliat  Dr. ,  one  of  the  witnesses, 

was  sick.  Mr.  Shea,  for  the  defense :  "  I 
thought  this  motion  might  be  made,  and  yester- 
day afternoon  (Sunday)  I  sent  a  messenger  to 
the  Metropolitan  Hotel,  and  was  informed  that 
Dr.  — —  was  in  the  bar-room  all  the  afternoon." 
Judge  Pitman  :  "  Probably  that 's  the  reason  he 
is  worse  to-day." 

In  the  spring  of  1861,  Judge ,  after  the 

adjournment  of  the  court,  sent  for  me,  and 
wanted  me  to  bring  the  bar  book  into  the  lobby, 
and  I  did  so.  "  Mr.  Willard,  I  want  you  to 
admit  two  gentlemen  whom  I  know  well,  though 
there  is  no  petition  or  motion."  They  signed 
the  bar  book,  and  I  administered  to  them  the 
oath.  They  were  the  late  Isaac  F.  Redfield, 
formerly  Chief  Justice  of  Vermont,  and  Redfield 
Proctor,  the  Secretary  of  War  in  1890. 

A  story  was  told  me  of  the  late  Judge  Red- 
field  by  the  late  William  A.  Herrick,  who  was  in 
the  jvidge's  office.  A  young  friend  of  Herrick's 
wanted  to  see  a  book  which  he  said  was  to  be 
found  only  in  the  library  of  Judge  Isaac  Red- 
field.  Herrick  told  him  to  go  into  the  judge's 
office,  take  the  book,  and  read  it  there.  He  did 
so,  and  taking  the  book  sat  down  to  read,  resting 
his  feet  on  the  mantel,  when  the  door  opened 
and  a  tall  lank  person  came  in,  with  an  aston- 


.1    PRESENTATWX   SPEECH.  129 

ishecl  look  in  his  face.  Mr.  Herrick's  friend 
said  to  him,  "  AVant  to  see  Isaac,  sir  ?  "  "  Young 
man,  /  'ni  Isaac,"  exclaimed  the  tall  individual. 

Chester  I.  Reed  was  appointed  a  judge  of  our 
Superior  Court  in  1867  ;  he  resigned  in  1871, 
died  in  1873,  and  before  he  was  judge  was  at- 
torney general. 

Sometimes  when  he  grew  impatient  he  spoke 
with  great  frankness.  When  he  was  at  the  bar, 
one  of  the  judges  was  about  to  leave  the  bench, 
so  the  bar  bought  a  handsome  gold-headed  cane, 
and  deputed  Judge  Reed  to  make  the  speech 
and  presentation.  The  judge  headed  the  pro- 
cession, holding  the  cane  tucked  away  under  his 
coat  behind  with  one  hand.  He  said :  "  May  it 
please  your  honor,  on  the  —  er  —  er  —  eve  of 
your  —  er  —  er  —  departure,  we  all  —  er  —  er  — 
having  the  utmost  feelings  of  kindness  for  you, 
it  has  fallen  to  my  lot  —  er  [then  hauling  out 
the  cane]  —  here,  take  your  darned  old  cane." 

A  cause  was  being  tried  before  Judge  Rock- 
well, when  counsel  offered  to  prove  certain  facts, 
to  which  the  other  counsel  objected.  "  What 
do  you  expect  to  show?"  asked  the  judge.  The 
judge  heard  his  statement,  and  the  opposite 
counsel's  reply,  and  then  said,  "  If  you  can  prove 
that,  I  think  you  may,  for  that  will  prove  a  sock- 
dologer." 


130  HES   JUDlCATyE. 

Chief  Justice  Shaw,  though  sometimes  severe 
upon  the  bench,  had  a  very  tender  heart.  We 
formerly  sent  one  bill  of  exceptions  to  the  Su- 
preme Court,  with  the  remainder  of  the  original 
papers,  and  copies  for  the  full  Court  were  made 
in  that  court.  The  statutes  enacted  that  a  judg- 
ment should  be  entered  notwithstanding  the 
exceptions.  Mr.  Durant  made  a  complaint  for 
the  non-entry  of  a  bill  of  exceptions.  He  called 
me  in  to  testify  as  to  when  judgment  was  en- 
tered. I  gave  the  date.  The  Chief  Justice 
said,  "  What,  sir,  judgment  entered  ?  "  I  said, 
"Yes,  your  honor."  "Very  wrong,  sir,  very 
wrong;  it  shoidd  not  have  been  entered." 
Many  lawyers  were  present,  and  I  felt  hurt, 
because  I  was  sure  I  was  right,  and  told  Mr. 
Wilde,  the  clerk,  when  I  went  downstairs,  and 
he  said :  "  Call  on  the  Chief  Justice  when  he 
goes  to  dinner  and  remind  him  of  the  statute  ;  " 
which  I  did.  The  next  day  he  came  into  the 
office  and  said  :  "  Mr.  Willard,  I  'm  sorry  to  say 
I  overlooked  that  statute,  and  you  are  correct." 
This  I  thought  was  the  amende  honorable. 

The  Chief  Justice  upon  the  opening  of  the 
court  liked  to  have  quiet  reign,  and  everybody 
seated,  when  he  would  proceed  to  business,  al- 
ways calling  the  docket  himself.  The  crier  had  a 
mvimbling  voice,  so  that  a  person  could  scarcely 
tell  when  he  ended  his  proclamation.     Mr.  D.  A. 


A    MOT  J  ON    rO    AMEND.  1  .'U 

Siainions,  a  lawyer,  who  was  a  very  impulsive 
man,  rushed  up  one  morning-,  rather  short  of 
breath,  before  the  crier  had  finished  his  procla- 
mation, and  said  :  "  Please  your  honor,  I  wish  — 
to  —  make  —  a  motion  —  er  —  er  —  to  amend  — 
er  —  er  —  the  case  of  —  er  —  er  "  —  "  There 
is  one  amendment  you  can  make  without  a  mo- 
tion," said  the  Chief  Justice  ;  "  your  inunners^ 
sir."  I  told  this  to  Henry  W.  Paine  when  he 
came  to  the  bar,  and  he  said,  "  Yes,  Mr.  Willard, 
I  was  on  my  way  to  New  York,  and  stoj^ped  in 
court  a  moment  and  heard  it,  and  I  pitied  poor 
Simmons  from  the  bottom  of  my  heart." 

The  Chief  Justice  was  calling  the  docket  one 
day,  and  came  to  a  case  in  which  Major  Cobb 
appeared.  The  major  was  busy  talking  with 
some  one,  and  the  Chief  Justice  said,  "  Mr.  Cobb, 
what  shall  be  done  with  your  case  ?  "  Cobb  :  "  I 
beg  your  honor's  pardon,  but  the  name  of  the 
case  escaped  me."  The  Chief  Justice  called  the 
name  of  the  case  again.  Cobb :  "  My  name 
may  appear  there,  your  honor,  but  I  really  don't 
know  anything  about  the  case."  Chief  Justice  : 
"  I  did  n't  siqypose  you  knew  anything  about  the 
case ;  I  only  asked  you  what  you  would  have 
done  with  it." 

Another  case  was  called  by  him  in  which 
General  Butler  appeared  for  the  plaintiff. 
"Does  any  one  answer  for  the  plaintiff?"  said 


1'.V2  JiKS   JrDICAT.E. 

the  Chief  Justice.  No  one  answered.  "  Call 
the  plaintiff,"  said  the  Chief  Justice.  As  the 
crier  began  calling,  Mr.  Butler,  who  had  been 
quietly  sitting-  in  the  court  room,  said :  "  May 
it  please  your  honor,  I  think  that  this  case  is 
not  in  a  condition  to  be  thus  summarily  disposed 
of."  "  Why  not,  sir?  "  said  the  Chief  Justice. 
Mr.  Butler :  "  I  argued  the  case  a  year  and  a 
half  ago  before  your  honor,  and  have  been  wait- 
ing for  an  opinion."  Chief  Justice  :  "  Pass  it, 
Mr.  Clerk." 

When  Judge  Shaw  on  behalf  of  Harvard 
College  took  possession  of  Mr.  Dowse's  library 
at  Cambridgeport,  which  was  presented  by  Mr. 
Dowse,  the  latter  handed  him  a  book  which  hap- 
pened to  be  Purchas's  "  Pilgrims."  "  Ah," 
said  the  Chief  Justice,  "  now,  Mr.  Dowse,  we 
have  this  by  gift,  and  by  purchase." 

Major  Cobb  and  Paul  Willard  were  arguing 
a  case  before  the  Chief  Justice  as  to  the  law  of 
forcible  detainer.  Willard  argued  that,  besides 
the  forcible  seizure  of  the  person,  there  must  be 
force  of  arms,  to   wit,  weapons.     Major  Cobb 

said  he  should  cite  the  well-known  case  of vs. 

,  where  it  was  held  that  violence  to  the  per- 
son by  laying  hands  on  him  was  sufficient,  mol- 
liter  maims  imposuit.  "  In  other  words,  Mr. 
Cobb,  that  it  does  n't  require  a  six-pounder," 
said  the  Chief  Justice.     This  allusion  to  Cobb's 


A    NAUTICAL    JUDGE.  133 

military  propensities,  he  being  connnancler  of  a 
battery,  created  a  smile,  wliich  was  all  that  was 
admissible  in  the  presence  of  the  Chief  Justice. 

I  was  once  on  the  jury  at  East  Cambridge, 
when  I  lived  in  Middlesex  County,  and  George 
F.  Farley  had  his  feet  on  the  table,  immediately 
in  front  of  the  Chief  Justice.  After  some  time 
the  Chief  Justice  said  :  "  Mr.  Farley,  the  Court 
has  indulged  in  the  sight  of  your  posteriors  long 
enough,  sir."  At  which  Mr.  Farley  took  his 
feet  down. 

The  Chief  Justice  seemed  to  be  armed,  cap-a 
pie,  in  the  knowledge  of  everything  outside  of 
the  law.  Henry  M.  Parker  once  made  a  long 
opening,  and  the  Chief  Justice  said  to  him,  "  Mr. 
Parker,  you  are  opening  your  case  quite  widely, 
sir."  Said  Mr.  Parker :  "  We  have  quite  a 
broad  sea  before  us,  your  honor."  "  So  much 
the  more  need  of  keeping  close-hauled  on  the 
■VN-ind  then,"  said  the  Chief  Justice.  In  the  strict 
sense  of  the  nautical  expression  "  broad  sea,"  it 
is  supposed  that  a  ship  may  go  anywhere,  but  I 
suppose  that  he  meant,  with  such  a  broad  sea,  he 
had  better  confine  himself  to  a  straighter  course  ; 
in  other  words,  to  have  a  care  where  he  went. 

Mr.  Hoar  was  once  opening  an  insurance  case 
to  recover  for  the  loss  of  a  ship  which  was 
burned,  and  the  Chief  Justice  said  :  "  What  did 
you  say  her   name   was,   Mr.    Hoar  ? "     "  The 


134  RES   JUDUATyK. 

John  Gilpin,"  replied  Mr.  Hoar.  "Now,"  said 
the  Chief  Justice,  "were  you  not  satisfied  with 
the  name  and  j)erfornianc*e  of  the  ship,  Mr. 
Hoar?"  "  Yes,"  said  Mr.  Hoar,  "it  is  a  name 
of  credit  and  renown." 

Judge  Shaw  was  very  fond  of  Moses  G.  CoLb  ; 
Mr.  Cobb  was  at  the  time  I  am  speaking  of 
commander  of  the  battery  called,  as  I  have 
stated  previously,  the  flying  artillery.  One 
morning  as  the  Chief  Justice  was  calling  the 
docket,  he  called  blank  against  blank,  Mr. 
Smith  for  the  plaintiff,  Mr.  Cobb  for  the  defend- 
ant. "Is  Mr.  Cobb  in  court?"  A  friend  of 
Mr.  Cobb's  arose  and  said,  "  Your  honor,  ]\Ir. 
Cobb  is  at  this  time  on  the  Common  ])erforniing 
his "  —  At  that  moment,  bang,  bang,  went 
a  cannon  on  the  Common.  "  /  hear  him,  sir," 
said  the  Chief  Justice. 

John  P.  Healy  told  me  that  Daniel  Webster 
said  of  Chief  Justice  Shaw,  "  Judge  Shaw  can 
do  the  work  of  ten  men,  and  at  night  eat  ham 
enough  to  raise  the  market  price  in  Cincinnati." 

In  a  private  letter  to  me  written  December, 
1889,  Major  Cobb,  now  of  San  Francisco,  speaks 
of  Chief  Justice  Shaw  thus :  "  One  of  the  proudest 
and  most  agreeable  recollections  of  my  experience 
at  the  bars  of  Suffolk  and  Middlesex  is  the  re- 
gard and  kindness  Chief  Justice  Shaw  always 
extended  to  me ;  he  put  Samuel,  his  youngest 


AN'ECDOTES    OF  JUDGE    SffAW.  135 

son,  to  study  law  with  nie.  The  members  of  the 
bai*,  especially  in  Middlesex,  would  get  me  to 
move  the  Court  when  the  Chief  Justice  was  presid- 
ing-, for  any  desired,  favor,  such  as  an  adjourn- 
ment or  the  modification  of  some  rule,  saying 
that  the  Chief  Justice  always  granted  what  I 
asked,  and  he  did.  It  must  be  strange  to  an 
old  Bostonian  to  see  the  augmented,  force  in  your 
office  ;  I  really  believe  one  clerk  with  you  could 
and  can  do  the  work  of  ten  with  us  ;  our  clerk 
has  fifty-eight  deputies  and  assistants.  We  have 
twelve  departments  of  our  Superior  Court ; 
eight  confined  to  civil  business,  and  four  to  crim- 
inal. I  fear  that  I  should  feel  like  a  cat  in  a 
strange  garret,  as  the  homely  saying  is,  to  appear 
now  in  your  courts ;  nearly  all  of  my  contem- 
poraries gone." 

On  one  occasion  after  a  jury  was  impaneled 
in  the  Supreme  Judicial  Court,  Judge  Shaw 
cast  his  eye  around  and  found  there  were  only 
eleven  men.  He  said  :  "  Mr.  Ofiicer,  find  the 
twelfth  man."  Some  time  elapsed,  when  the 
officer  came  in,  and  the  judge  said,  "  Have  you 
found  him,  Mr.  Officer  ?  "  "  No,  your  honor." 
"  Where  is  he  ?  "  said  the  judge.  "  I  don't  know, 
sir  ;  he  's  dead." 

At  another  time  some  distinguished  man  died, 
and  the  adjutant-general  ordered  out  a  certain 
regiment.     The  colonel  called  the  men  to  their 


136  iii:s  JUDICATA. 

quarters  to  parade  on  the  occasion,  and  procured 
a  band.  The  k'ader  coukl  not  get  his  pay,  and 
Mr.  Cohb  brouglit  suit  against  the  colonel. 
After  Major  Cobb  had  opened  the  case,  the  Chief 
Justice  said :  "  How  can  this  action  be  main- 
tained?" "On  the  ground,"  said  Mr.  Cobb, 
"  that  he  who  danced  must  ])ay  the  fiddler." 
"  Who  danced  here,  sir  ?  "  said  tlie  Chief  Jus- 
tice. "  Colonel ,"  said  Mr.  Cobb.    "  Oh  no, 

sir,"  said  the  Chief  Justice,  "he  only  called." 

Many  years  ago  a  young  man  (now  deceased) 
who  was  quite  ambitious  to  display  his  rhetorical 
powers  and  endeavored  to  imitate  Choate,  argued 
a  case  before  Chief  Justice  Shaw.  He  had  in 
one  hand  the  statutes,  while  the  other  was  be- 
hind his  back,  vmderneath  the  skirts  of  his  coat. 
In  this  position  he  shouted  among  other  bursts 
of  eloquence,  "  Look  at  the  statutes,  your  honor, 
look  at  the  statutes."  "  Look  at  them  yourself, 
sir,"  was  the  gruff  reply  of  the  Chief  Justice. 

Chief  Justice  Wells  was  appointed  in  1844, 
and  died  in  1854.  He  was  considered  a  very 
good  lawyer,  industrious  and  patient,  but  not  a 
man  of  much  executive  ability.  At  the  end  of 
the  day's  trial  he  would  always  look  around,  and 
inquire,  "  Is  there  any  gentleman  who  wishes  to 
make  a  motion  ?  "  And  he  would  sit  till  six  or 
seven  o'clock  if   he  could    find  any  one  to    be 


HORSE   MEDICISK.  137 

heard.  I  never  remember  him  to  have  made  a 
remark  of  a  hmiiorous  nature  but  once.  It  was 
on  an  occasion  when  a  person  had  brought  suit 
to  recover  for  medical  services  and  medicines. 
He  testified  that  he  was  an  eclectic  physician. 
After  the  plaintiff's  testimony  was  in,  the  defend- 
ant asked  the  Court  to  rule  that  he  could  not 
recover  because  he  was  not  a  member  of  the  Mas- 
sachusetts Medical  Society.  "  Oh  no,  Mr.  Attor- 
ney," said  Judge  Wells,  "  I  can't  rule  that ;  I 
think  that  if  a  man  employs  a  horse  doctor,  he 
must  pay  for  horse  medicine." 

I  never  saw  him  more  astonished  than  when 
J.  H.  Bradley  asked  him  to  make  a  certain  rul- 
ing. The  case  was  this  :  One  J.  B.  Hoogs  after 
bank  hours  met  a  man  named  Chamberlain  and 
said,  "  Chambei'lain,  lend  me  two  hundred  dol- 
lars, and  I  will  give  you  my  check  payable 
to-morrow."  Chamberlain  lent  him  two  hun- 
dred dollars,  took  the  check,  and  presented  it 
the  next  morning  at  the  bank,  and  it  was  found 
that  Hoogs  had  no  funds  in  the  bank  wherewith 
to  pay  the  check.  Chamberlain,  by  his  attorney, 
William  Brigham,  Esq.,  brought  an  action 
against  Hoogs,  got  judgment  for  his  two  hun- 
dred dollars,  and  arrested  Hoogs,  who  undertook 
to  take  the  Poor  Debtor's  oath. 

Chamberlain  alleged  fraud  before  the  justices 
in  the  lower  court,  and  the  case  was  appealed  to 


138  RE^  JUDfCAT^. 

the  Court  of  Common  Pleas.  The  jury  found 
Hoogs  guilty,  and  Bradley  moved  an  arrest  of 
judgment  on  the  ground  that  the  allegations 
were  not  in  ])ro])er  form  ;  that  they  alleged  a 
negative  in  this,  to  wit,  that  he  contracted  the 
debt  not  intending  to  pay  it.  Judge  Wells  said, 
"  Mr.  Bradley,  is  this  for  the  purpose  of  delay  ?  " 
"  Oh,  no,  your  honor,"  replied  Mr.  Bradley,  "  I 
never  raised  a  ])oint  in  which  I  had  more  confi- 
dence than  in  this."  "  Oh  well,"  said  the  judge, 
"  I  will  overrule  your  motion,  and  you  can  have 
your  exceptions."  The  Supreme  Court  sustained 
Mr.  Bradley,  and  said  in  their  decision,  that  by 
the  allegation,  "  not  intending,"  he  had  no  inten- 
tion at  all,  and  that  the  allegation  should  have 
been  in  the  affirmativCj  to  wit,  that  he  "  in- 
tended not ;  "  and  so  Hoogs  got  clear. 

One  day  Judge  Wells  was  trying  a  case 
when  there  was  upon  the  witness  stand  a  tall, 
stout  teamster  with  a  very  small  voice.  The 
judge  complained  to  him  several  times  that  he 
could  not  hear  him.  At  last  he  laid  down  his 
pen  and  said,  "  Mr.  Teamster,  there  is  a  great 
deal  of  noise  about  the  Coui-t  House,  express 
wagons  rattling  round,  a  parrot  hanging  on  the 
wall  on  the  other  side  of  the  street  talking,  and 
silversmiths'  hammers  pounding ;  you  must  talk 
louder,  sir,  and  talk  as  if  you  were  talking  to 
your  horses." 


A  BOY'S  LOGIC.  139 

He  was  very  sensitive  as  to  noises,  and  said 
one  day  to  the  officer,  when  he  was  hearing 
motions,  "  Mr.  Officer,  I  cannot  be  so  disturbed  ; 
I  hear  a  man  cracking  peanuts  over  in  the 
corner." 

A  little  episode  occurred  between  Judge 
Wells  and  a  boy,  wherein  the  answers  of  the 
boy  were  so  logical  that  I  will  relate  it.  He 
was  a  very  small  boy,  and  the  opposite  counsel 
wished  to  examine  him  on  the  voir  dire  before 
his  examination  in  chief,  so  the  judge  took  it 
into  his  own  hands. 

"  Little  boy,  do  you  go  to  school  ?  "  "  Yes, 
sir."  "  Do  you  go  to  Sunday-school  ?  "  "  Yes, 
sir."  "  Who  is  aU  good  ?  "  "  God."  "  Who 
is  bad?"  "The  devil."  "Where  do  good 
boys  go?"  "Go  to  God."  "Where  do  bad 
ones  go  ?  "  With  perfect  innocence  he  replied, 
"  Go  to  the  devil."     Logic  is  logic  ! 

A  horse  case  was  being  tried  before  Judge 
Wells  when  he  was  Chief  Justice  of  the  Court 
of  Common  Pleas,  and  a  colored  man  upon  the 
stand  testified  that  the  horse  was  kept  in  a  box 
stall.  "  What  is  a  box  stall  ?  "  asked  the  judge. 
"  Why,  you  be  in  a  box  stall,"  said  the  witness. 

Ira  Gibbs  had  a  case  in  the  municipal  court, 
now  called  the  Superior  Court  Criminal,  and 
District  Attorney  Samuel  D.  Parker  said  to 
Chief  Justice  Wells  that   he  did  not  wish   to 


140  RES  JUDICAT.^. 

argiae  the  case,  and  asked  him  to  charge  in  liis 
absence,  which  was  done.  After  the  charge  was 
given,  and  when  tlie  officer  was  about  to  take 
the  jury  out,  Gibbs  said,  "  As  your  honor  has 
made  so  good  an  argument  for  the  Common- 
wealth, I  hope  you  will  say  a  few  words  in  favor 
of  my  client."  Judge  Wells  looked  over  his  spec- 
tacles at  Gibbs,  and  said,  "  Mr,  Gibbs,  this  is 
very  insulting  language,  and  3  ou  must  retract 
the  words."  Gibbs  :  "  I  did  not  mean  to  insult 
the  Court.  I  only  said  that  as  you  had  done  so 
well  for  the  Commonwealth,  I  hoped  you  would 
do  a  little  for  ray  client."  Judge :  "  Why,  Mr. 
Gibbs,  you  are  repeating  the  language  ;  the  Court 
will  not  tolerate  such  remarks,  and  will  deem  it 
its  duty  to  commit  you  for  contempt."  Gibbs  : 
"  I  did  n't  mean  any  contempt,  your  honor  ;  I 
only  said  I  hoped  you  would  do  something  for 
my  client."  Wells  :  "  What,  sir,  again  !  Ah, 
Mr.  Officer,  take  the  jury  out;  he  evidently 
does  n't  see  the  point." 

My  father  told  me  an  anecdote  of  Judge 
Samuel  S.  Wilde,  appointed  in  1815,  resigned 
in  1850,  and  deceased  in  1855.  Formerly, 
Maine  and  Massachusetts  were  one  State,  and 
in  going  from  the  far  East  people  often  went  in 
sailing  packets.  A  case  was  before  him  for 
divorce,  and  all  the  evidence  in  the  case  was, 


A    PETITION    TO    DISBAR.  141 

that  the  libellee,  or  respondent,  was  on  the  out- 
side of  a  berth,  and  the  man  inside,  with  his 
feet  at  the  other's  head.  "  Pooh  I  "  said  fludge 
Wilde,  "  dismiss  the  comjjlaint ;  nothing  but 
heads  and  points ;  I  've  done  it  a  thousand, 
times." 

I  was  present  when  an  attorney  used  some 
new  recondite  word.  Judge  Wilde  said  :  "  What 
is  that  word,  what  does  that  mean  ?  I  have  n't 
heard  it  before."  Counsel :  "  Please  your  honor, 
Mr.  Webster  has  got  out  a  new  dictionary  with 
ten  thousand  new  words  in  it."  Judge  Wilde: 
"  Mercy  on  us !  I  hope  Choate  won't  get  hold 
of  it." 

One  day  I  signed  an  execution  and  made  a 
mistake  of  one  hundred  dollars.  The  mistake 
was  not  discovered  until  more  than  a  year  after- 
ward, when  a  woman  (the  defendant  in  the  case) 
came  into  the  office  and  wanted  to  know  how 
the  damages  in  the  execution  were  so  high.  I 
asked  her  for  her  address,  told  her  to  go  home, 
and  if  the  attorney  who  collected  the  money 
refused  to  pay  it,  I  would.  I  wrote  to  the  attor- 
ney (who  shall  be  nameless)  and  he  called  at  my 
office  and  justified,  stating  that  whatever  mis- 
take the  clerk  made  inured  to  his  benefit.  I 
was  quite  indignant  and  told  liim  that  I  should 
bring  a  petition  to  disbar  him.     This  had  no 


142  BFS   JUDICATA-:. 

effect.  I  drew  up  the  petition,  presented  it  to 
Judge  Wilkinson,  who  read  it,  and  told  me  to 
give  the  attorney  notice  forthwith  to  appear  the 
following  Monday  at  nine  o'clock,  a.  m.,  and  he 
would  hear  the  parties  in  the  presence  of  the 
bar,  juries,  and  witnesses  in  all  cases,  who  might 
be  present.  Mr.  Elias  Merwin  was  my  counsel. 
The  case  was  heard,  and  at  the  close  of  it,  the 
judge  remarked  to  the  attorney :  "  You  have 
been  guilty  of  great  forgetfulness,  at  least,  and 
apparently  unmindful  of  your  oath  as  an  attor- 
ney. I  will  give  you  until  two  o'clock  this  after- 
noon to  repay  the  money."     It  was  repaid. 

The  following  occurred  between  Judge  Wil- 
kinson and  a  witness  who  refused  to  obey  the 
subpoena  of  the  Court,  and  who  was  brought  in 
on  a  cajnas.  He  had  a  wretched,  dirty  appear- 
ance, and  his  hair  was  very  long. 

Judge  :   "  What  is  your  name  ?  " 

Witness  (with  his  ejes  half  shut,  and  look- 
ing dreamily  into  space)  :  "  Charles  Augustus 
Smith." 

"  How  old  are  you  ?  " 

"  Fifty-seven  years." 

"  You  were  summoned  as  a  witness  in  this 
case." 

Witness  (sleepily)  :  "  I  s'pose  I  was." 

Judge  :  "  Don't  you  know  you  were  ?  " 


ADMISS/OX    TO    THE   BAR.  143 

Witness  (^sotto  voce)  :  "  I  s'pose  I  was." 

Judge  :  "  Why  did  n't  you  come  ?  " 

Witness  :  "  I  had  so  many  summons  about 
that  time  I  thought  it  was  n't  my  duty." 

Judge  :  "  Don't  you  know  you  were  sum- 
moned to  testify  here,  and  that  there  is  a  pen- 
alty for  disobeying  ?  " 

Witness  (suppliantly)  :  "  I  was  content  to 
leave  it  with  God,  and  I  hope  you  will  do  jus- 
tice and  leave  it  with  Him,  and  you  will  do  just 
what  I  want  to  have  you." 

Judge  :  "  Are  you  willing  to  testify  in  this 
case  r 

Witness  (looking  up  for  the  first  time)  :  "  As 
to  what?" 

Judge :  "  To  answer  such  questions  as  shall 
be  put  to  you." 

Witness  :  "  I  want  to  do  what  is  right,  what 
God  wants  me  to." 

Judge  :  "  Be  seated." 

Formerly,  when  a  person  presented  a  petition 
to  the  Superior  Court  for  admission  to  the  bar, 
it  was  customary  to  examine  him  either  upon 
written  questions,  or  by  oral  questions  by  the 
judge.  It  was  found  that  the  applicants  copied 
the  written  interrogatories,  and  gave  them  to 
other  candidates,  so  that  method  was  abandoned  ; 
and  prior  to  the  appointment  of  commissioners, 


144  RES  J  r  Die  AT  J-:. 

the  judge  examined  them  orally.  One  afternoon, 
while  Jiulyc;  Wilkinson  was  presiding,  a  fine- 
looking  young  man  presented  his  ])etition  for 
admission  to  the  bar.  The  judge  asked  me  to 
see  if  he  had  good  reconmiendations  as  to  char- 
acter, and  to  ask  him  where  and  how  long  he 
had  studied.  I  looked  at  the  recommendation, 
and  made  the  inquiry.  1  told  the  judge  that  his 
recommendations  were  good,  coming  from  an 
honorable  member  of  our  bar,  and  that  he  had 
studied  law  during  a  three  years'  cruise  on  board 
a  United  States  man-of-war.  Judge  Wilkinson 
said :  "  Tell  him  I  will  examine  him  after  four 
o'clock,  and  it  will  be  an  extraordinary  exami- 
nation." The  next  morning,  Judge  Wilkinson, 
with  a  grim  smile  (I  never  knew  him  to  laugh), 
said  to  me  :  "  I  examined  that  young  man,  and 
I  am  surprised  ;  he  passed  one  of  the  best  exam- 
inations I  ever  knew.  You  may  admit  him  this 
afternoon." 


rv. 

PAR    HORRIDUM. 

On  the  morning  of  the  7th  of  April,  1830, 
Joseph  White,  of  Salem,  was  found  murdered  in 
his  bed.  In  the  memorable  trial  which  followed, 
I  took  a  strong  interest.  Mr.  White  was  a 
wealthy  Salem  merchant.  No  one  slept  in  the 
house  that  night  but  his  man  servant,  and  maid 
servant.  His  niece,  Mrs.  Beckford,  who  was 
usually  there,  was  that  night  away  on  a  visit  to 
her  daughter  at  Wenham.  Thirteen  stabs  were 
found  on  Mr.  White's  body,  done  probably  by 
a  dirk,  and  a  blow  on  his  left  temple,  which 
fractured  his  skull.  Nothing  appeared  to  have 
been  taken  from  the  house,  which  made  the 
murder  all  the  more  mysterious,  as  he  had  no 
enemy.  Rewards  were  offered  for  the  perpetra- 
tors by  his  heirs,  the  selectmen,  and  Governor 
Levi  Lincoln  ;  and  a  vigilance  committee  was 
chosen,  consisting  of  twenty-seven  members. 

Captain  Joseph  J.  Knapp,  a  Salem  merchant 
and  shipmaster,  had  two  sons,  Joseph  J.,  jr., 
and  John  Francis  Knapp.  They  said  that 
while  they  were  riding  in  a  chaise  from  Salem 


146  PAR   nORRIDUM. 

to  Wenham,  on  the  night  of  the  27th  of  April, 
a  highway  robbery  was  committed  upon  them, 
near  Wenham  Pond.  This  robbery  was  made 
public  the  next  morning,  and  one  newspaper 
announced  that  "  These  gentlemen  were  well 
known  in  town,  and  their  respectability  and 
veracity  are  not  questioned  by  any  of  our 
citizens." 

No  clue  coidd  be  found  to  the  murderer 
until  about  the  last  of  April,  when  a  prisoner 
in  the  New  Bedford  jail  said  that  he  knew  some- 
thing about  it,  although  he  had  been  a  prisoner 
there  some  time  before,  and  was  still  one  at  the 
time  of  the  commission  of  the  murder.  His 
name  was  Hatch,  and  he  was  brought  from  New 
Bedford  by  Attorney-General  Perez  Morton 
before  the  Grand  Jury,  then  sitting  at  Ipswich, 
to  testify.  The  result  was  that  Richard  and 
George  Crowninshield,  Selman,  and  Chase,  of 
Lynn,  were  all  arrested  on  the  second  day  of 
May,  and  committed  to  prison. 

On  the  15th  of  May,  Joseph  J.  Knapp,  the 
father,  received  a  letter  from  Belfast,  Me., 
purporting  to  be  written  by  Charles  Grant,  jr., 
of  Prospect,  Me.  This  letter  was  intended  for 
Joseph  J.,  jr.,  but  it  fell  into  the  hands  of  the 
father;  as  it  was  Greek  to  him,  he  handed  it 
to  his  other  son,  Nathaniel  Phippen  Knapp,  a 
lawyer,   who   found    it    equally    imintelligible. 


MURDER    OF  JOSEPH    WHITE.  147 

The  letter  was  a  threatening-  one  to  Joseph  J., 
jr.,  written  on  the  12th  of  May,  demanding 
money,  and  threatening  disclosures  if  it  did  not 
come.  Knapp  and  his  son,  the  lawyer,  took  the 
letter  to  Wenham,  where  Joseph  and  Frank 
were  living,  and  showed  it  to  them. 

Joseph  told  his  father  that  it  was  "  a  lot  of 
trash,"  and  wished  him  to  give  it  to  the  vigi- 
lance committee,  which  he  did. 

The  next  day,  Sunday,  May  16,  two  pseu- 
donymous letters  were  dropped  into  the  Salem 
post-office,  one  addressed  to  Stephen  White, 
the  other  to  Gideon  Barstow. 

The  committee  answered  the  Grant  letter, 
not  by  mail  from  Salem,  but  by  a  man  who 
went  to  Prospect,  Me.,  deposited  this  letter  ad- 
dressed to  Grant  in  the  post-office  there,  and 
waited  to  see  him  come  and  get  it.  He  did  not 
have  to  wait  long,  and  when  Grant  called  for 
the  letter  he  was  immediately  arrested.  His 
name  was  Palmer,  and  although  he  had  no 
hand  in  it,  he  disclosed  the  whole  plan  of  the 
murder.  The  night  of  the  murder  he  spent  at 
the  Half  Way  House  in  Lynn,  on  the  old  turn- 
pike. He  said  the  purpose  of  the  murder  was 
to  destroy  the  will  of  Joseph  White,  and  that 
Richard  Crowninshield  was  to  be  paid  $1000 
for  doing  the  deed.  The  two  young  Knapps 
were  arrested  on  the  26th  of  May.     Richard 


MS  PAR  iioniuDiwr. 

Crowninshield  had  laid  his  pLins  to  kill  White 
oil  the  evening  of  the  4th  of  Ajji-il,  on  the 
latter's  return  from  tea  at  a  neighbor's,  but 
White  returning  before  it  was  dark,  the  plan 
was  thwarted.  The  robbery  was  simply  an 
invention  of  Joseph's,  and  it  was  he  who 
wrote  the  two  pseudonymous  letters. 

On  the  3d  of  June,  Palmer  was  brought  to 
Salem  and  committed  to  jail.  On  the  15th  of 
June,  Richard  Crowninshield  committed  suicide 
by  hanging  himself  with  his  handkerchief,  in 
his  cell.  An  indictment  was  found  against 
Frank  Knapp,  as  principal,  and  Joseph  J. 
Knapp,  jr.,  and  George  Crowninshield,  as  ac- 
cessories. The  law  then  was,  that  an  accessory 
could  not  be  tried  till  the  principal  had  been 
convicted,  and  as  Richard  Crowninshield  was 
dead,  Frank  Knapp  was  converted  into  a  prin- 
cipal, tried  first,  convicted  and  hanged,  and  I 
was  jjresent  at  the  execution.  Joseph,  tried  as 
an  accessory  afterwards,  was  also  convicted  and 
hanged.  George  Crowninshield  was  acquitted, 
on  an  alibi,  and  lived  many  years.  Selman  and 
Chase  were  released  by  Attorney -General  Perez 
Morton,  and  Palmer  was  discharged  because  of 
his  services  to  the  government. 

Chief  Justice  Isaac  Parker  died  on  the  26th  of 
July,  1830,  and  the  Court  was  obliged  to  ad- 
journ to  the  3d  of  August,  for  the  trial  of  Frank 


MURDER    OF  JOSEFH    WHITE.  149 

Knapp.  The  counsel  for  the  prisoners  were 
Franklin  Dexter  and  William  II.  Gardiner. 
Robert  Rantoul  also  acted  for  the  defense,  to 
which  objection  was  made  on  account  of  his 
youth,  he  having  then  but  recently  been  ad- 
mitted to  the  bar.  Daniel  Webster  aided  the 
government,  and  made  in  this  case  one  of  his 
greatest  arguments. 

Many  years  later,  and  after  I  had  entered 
into  the  business  of  the  Courts,  I  saw  George 
Crowninshield  one  day  in  court,  where  he  ap- 
peared as  a  witness  for  the  plaintiff,  in  a  case 
there  on  trial.  I  told  Mr.  Hodges,  who  was 
counsel  for  the  defendant  in  the  case,  that  he 
was  the  George  Crowninshield  who  was  indicted 
with  the  Knapps  at  Salem.  He  asked  me  if  I 
was  sure.  I  said  I  was.  In  the  cross-examina- 
tion he  asked  him  where  he  lived.  The  witness 
answered,  Roxbury.  Hodges  then  asked  him 
where  he  lived  before  that,  and  so  on  until  he 
had  asked  him  five  or  six  questions,  Crownin- 
shield carefully  avoiding  Salem  till  Hodges 
asked,  "  Did  you  ever  live  at  Salem  ?  " 

"Y-e-s,"  he  answered. 

"  Were  you  any  relation  to  Richard  Crownin- 
shield?" 

"Yes." 

"Wliat  relation?" 

"  Brother." 

"  That  will  do,  sir." 


150  PAR  HORRIDUM. 

On  November  23,  1849,  Dr.  George  Park- 
man  was  murdered  in  Boston,  at  the  old  Medi- 
cal College,  now  the  Harvard  Dental  School,  on 
North  Grove  Street.  He  was  seen  going  into 
the  College  at  a  little  before  two,  in  the  after- 
noon of  that  day,  and  was  never  after  seen 
alive.  On  Friday,  November  30,  the  day  after 
Thanksgiving,  a  portion  of  his  remains  were 
discovered  in  a  vault  under  the  College  by 
Ephraim  Littlefield,  the  janitor,  and  it  was  in- 
teresting to  hear  him  give  an  account  of  his 
first  suspicion  of  Dr.  Webster, — the  locked 
doors,  the  constant  fires,  and  the  late  hours  at 
which  the  Doctor  worked  in  his  laboratory ; 
and  still  more  so  to  hear  him  tell  about  his 
crawling  a  long  distance  under  the  building 
with  his  tools  to  drill  with,  —  the  distance  from 
the  underpinning  of  the  building  to  the  ground 
being  so  short  as  hardly  to  admit  his  body,  — 
of  his  drilling  through  several  thicknesses  of 
the  brick  vault,  taking  his  chance  when  Dr. 
Webster  was  not  at  the  College,  and  of  putting 
his  wife  on  guard  to  let  him  know  if  she  saw  the 
Doctor  coming.  After  long  and  persistent 
drilling,  that  day,  through  three  courses  and  a 
half  of  brick,  he  made  a  hole  through  the  vault, 
and  putting  a  light  in,  he  saw  the  pelvis  of  a 
man,  and  two  pieces  of  legs.  He  immediately 
crawled  out  and  ran  to  the  houses  of  Dr.  Jacob 


TRIAL    OF   DR.    WEBSTER.  151 

Bigelow  and  Robert  G.  Shaw,  jr.,  and  then  to 
Dr.  J,  B.  S.  Jackson's,  who  lived  in  what  was 
then  called  Bedford  Place,  and  informed  them 
of  what  he  had  found. 

In  the  afternoon  of  that  day,  not  then  know- 
ing of  any  discovery,  I  was  talking  with  David 
Morgan,  a  lawyer,  who  was  then  practicing  in 
Boston.  I  said  to  him,  "  If  the  body  of  Dr.  Park- 
man  is  found  in  or  about  the  Medical  College, 
I  believe  Dr.  Webster  had  a  hand  in  the 
murder." 

He  said,  "  Don't  you  breathe  such  a  word 
outside  this  Court  House." 

I  had  known  Dr.  Webster  from  my  boyhood 
up,  and  had  been  to  school  with  some  of  his 
children.  Possibly  I  was  prejudiced  against 
him,  because  I  thought  he  had  been  cruel  to 
dogs,  of  which,  when  a  boy,  I  was  very  fond. 
On  one  occasion,  he  obtained  a  large,  good- 
natured  pup,  about  ten  months  old,  a  pet  of  all 
the  boys  in  town,  took  him  to  his  laboratory  in 
Cambridge,  gave  him  some  blows  on  the  head, 
and  set  the  galvanic  battery  in  operation  upon 
him.  The  dog,  not  being  sufficiently  stunned, 
jumped  up,  knocked  down  some  students,  and 
ran  out  of  the  door ;  the  next  day  we  found  him 
in  an  old  dried-up  well. 

On  Sunday  afternoon,  two  days  after  the 
murder,  my  father  told  me  that  he  was  at  the 


152  PAR  IIORRinUM. 

City  Clerk's  Office  at  Cambridge,  and  Dr. 
Webster  called  there  to  see  if  Dr.  Parkman 
had  been  there  to  discharge  a  mortgage.  On 
Satinday  morning,  the  1st  of  December,  I  met 
Mr.  Edward  Blake  and  Mr.  Samuel  D.  Parker, 
who  told  me  of  the  discovery  that  had  been 
made  the  afternoon  before.  The  same  forenoon 
the  "  Boston  Times  "  published  a  short  item  of 
fifteen  or  twenty  lines,  giving  a  general  account. 
I  showed  it  to  my  father,  who  had  been  an  asso- 
ciate professor  with  Dr.  Webster  for  a  number 
of  years.  After  having  read  it  he  said,  "  This 
is  atrocious."  I  said,  "  No,  sir,  this  is  true, 
and  when  you  have  read  the  evidence,  you  will 
think  it  was  deliberate."  He  said,  "  I  always 
knew  Dr.  Webster  to  be  a  very  frivolous  man, 
but  I  never  thought  he  was  a  wicked  one." 
But  in  the  end  he  came  to  the  conclusion  that 
it  was  premeditated. 

The  trial  began  on  the  19th  of  March,  1850, 
in  the  old  Court  House  in  Boston.  The  closing 
argument  of  Attorney-General  Clifford  (who  was 
afterwards  governor)  was  made  on  Saturday, 
the  30th  of  March.  The  chai-ge  to  the  jury  was 
given  by  Chief  Justice  Shaw,  the  prisoner  him- 
self having  just  addressed  them,  and  the  verdict 
of  guilty  was  rendered  on  that  day  about  eleven 
o'clock  P.  M.  Sentence  of  death  was  imposed 
by  the  Chief  Justice,  on  the  Monday  following, 


TRIAL    OF  DR.    WEBSTER.  153 

and  Dr.  Webster  was  hanged  in  the  yard  of  the 
old  Leverett  Street  Jail,  on  Friday,  August  30, 
1850. 

The  justices  who  presided  at  the  trial,  Shaw, 
Wilde,  Dewey,  and  Metcalf ;  Attorney-General 
Clifford  and  George  Beniis,  counsel  for  the 
government;  Pliny  Merrick  and  Edward  D. 
Sohier,  the  prisoner's  counsel  (an  effort  had 
been  made  to  retain  Franklin  Dexter,  Esq,,  but 
he  refused)  ;  Governor  Briggs,  —  to  whom  Dr. 
Webster  after  the  verdict  applied,  first  for  par- 
don, afterwards  for  commutation  of  sentence,  — 
and  the  Rev.  Dr.  George  Putnam,  his  spiritual 
adviser,  have  all  died.  Of  the  jury,  Stephen  A. 
Stackpole,  of  Boston,  is,  I  understand,  the  only 
survivor.  Seventy-one  witnesses  were  called 
for  the  government,  and  fifty  for  the  prisoner. 
The  secret  of  the  murder  Dr.  Webster  disclosed 
to  no  one  for  about  six  months.  On  the  23d 
of  May,  1850,  he  revealed  it,  or  so  much  of  it  as 
he  thought  best,  to  the  Rev.  Dr.  Putnam. 

At  the  time  of  the  trial,  the  excitement  was 
very  great,  as  much,  about  the  Court  House 
particularly,  as  at  the  time  of  the  rendition  of 
the  slaves.  Sheriff  Eveleth  had  taken  great 
precaution  to  close  up  that  part  of  the  corridor 
which  led  from  the  north  end  of  the  Court 
House  to  the  Supreme  Court,  and  also  the  back 
passage  which  led  from  the  rear  of  the  Court  of 


154  PAR   HORRID r.u. 

Common  Pleas  to  the  rear  of  the  Supreme 
Court,  so  that  there  were  only  two  entrances  to 
the  Supreme  Court  room.  As  I  have  said  be- 
fore, the  south  end  of  the  Court  House  was  the 
same  as  the  front  is  now,  and  there  were  two 
doors  at  the  south  end,  between  two  and  three 
inches  thick.  Two  stalwart  officers  were  sta- 
tioned at  these  doors ;  one  door  was  entirely 
closed,  and  when  it  became  necessary,  the  other 
door  just  sufficiently  to  allow  one  person  at  a 
time  to  pass  in.  Twenty  or  thirty  persons  were 
allowed  to  go  in,  one  at  a  time,  to  the  gallery ; 
after  they  had  been  there  long  enough  to  hear  a 
portion  of  the  evidence,  the  gallery  was  cleared 
and  those  persons  were  sent  downstairs  to  pass 
out  through  the  cellar  into  the  street,  and  a  new 
bevy  was  allowed  to  enter.  One  of  these  offi- 
cers was  a  remarkably  stout  man,  and  wore 
number  twelve  rubber  shoes.  At  the  conclusion 
of  the  trial,  he  showed  me  one  of  his  rubber 
shoes,  full  of  various  buttons  which  had  been 
taken  off  the  coats  of  the  persons  in  the  crowd. 

Littlefield,  the  janitor  of  the  Medical  College 
where  Dr.  Parkman's  remains  were  found,  stated 
in  his  evidence  that  a  small  sledge-hammer 
which  was  behind  the  door  was  missing,  and  he 
did  not  know  what  had  become  of  it.  A  person 
told  me  this  at  the  time :  that  as  he  was  walking 
over  Cambridge  bridge  quite  late  one  evening. 


TRIAL    OF   DR.     WEBSTER.  155 

he  heard  a  splash  in  the  water.  He  quickened 
his  steps,  and  passed  Dr.  Webster.  He  said  if  it 
became  material,  he  would  testify  to  it ;  other- 
wise I  was  not  to  mention  it.  He  and  I  always 
thought  that  this  hammer  possibly  had  a  part  in 
the  tragedy. 

I  am  the  only  surviving  deputy  sheriff  who 
ofBciated  at  the  execution.  On  the  morning  of 
the  execution,  the  Doctor  was  calm  and  collected, 
and  told  us  of  experiments  which  he  had  made 
with  the  galvanic  battery  some  years  previous, 
on  a  man  who  had  been  executed.  He  objected 
to  having  his  limbs  confined  by  cords,  and 
wanted  leather  straps,  and  his  wish  was  com- 
plied with.  I  have  still  a  very  handsome  shell 
in  my  possession,  which  he  cleaned  and  polished 
the  night  before  his  execution. 

It  has  remained  a  secret  where  Dr.  lYebster 
was  buried.  Some  years  ago,  a  dentist,  who 
was  a  pupil  of  Dr.  Keep,  told  me  that  on  the 
night  of  the  fire  in  1872,  he  was  in  the  vaults 
of  Trinity  Church  on  Summer  Street,  in  com- 
pany with  an  official  of  the  church.  He  gave 
me  his  name,  but  I  do  not  feel  sure  enough 
about  it  to  state  it.  The  official  said  :  "  Doctor, 
if  you  will  not  tell  anybody,  until  I  am  dead,  I 
will  tell  you  a  secret."  The  Doctor  said  he 
would  not.  "There,"  said  the  official,  "lies  the 
body  of  Dr.  Webster." 


ir>0  PAR    lIOlilUDlWf. 

On  an  excursion  steamer  down  Boston  Har- 
bor, in  the  summer  of  1882,  I  met  Mr.  Charles 
W.  Kingsley,  who  was  the  agent  of  Dr.  Park- 
man  at  the  time  of  the  murder,  and  afterwards 
a^ent  for  the  family  at  the  time  I  sj)eak  of. 
He  was  the  first  who  suspected  Dr.  Webster  as 
the  murderer,  and  directed  search  in  that  way. 
He  said  he  was  riding  with  John  L.  Andrews 
in  the  cars  one  day,  after  the  arrest  of  Dr.  AVeb- 
ster,  when  a  clergyman,  entering  into  conver- 
sation with  Andrews,  said  among  other  things : 
"  You  have  the  wrong  man  arrested  as  the  mur- 
derer of  Dr.  Parkman."  "  Ah,  indeed,"  said 
Andrews.  "  Yes,  sir,"  said  the  clergyman.  An- 
di-ews  was  quite  angry,  and  was  about  to  retort, 
but  Kingsley  whispered,  "  Let  him  go  on." 
Said  Andrews :  "  Who  do  you  think  killed  the 
Doctor  ? "  The  clergyman  :  "  That  agent  of 
Parkman,  to  be  sure  "  (meaning  Kingsley,  who, 
by  the  way,  was  a  fine-looking  man).  Andrews  : 
"  Why  do  you  think  so  ?  "  The  clergyman  :  "  I 
was  introduced  to  him  one  day  in  Boston,  and 
talked  with  him,  and  I  never  saw  greater  marks 
of  guilt :  he  seems  to  have  the  most  villainous 
countenance  you  ever  saw."  Said  Andrews 
(pointing  to  Mr.  Kingsley)  :  "  Allow  me  to  in- 
troduce to  you  Mr.  Charles  M.  Kingsley,  the 
agent  of  the  late  Dr.  Parkman  and  of  his  family 
now."  The  clergyman  began  to  apologize,  but 
Andrews  said,  ''  There  is  no  need  of  it." 


V. 

OBITER  DICTA.  —  PART  I. 

A  LAWYER  once  set  up  this  defense :  A  young 
man  hired  a  horse  and  buggy  of  a  stable-keeper, 
and  invited  a  companion  to  ride  with  him.  The 
person  who  hired  the  horse  drove  him  so  im- 
moderately that  the  horse  died.  John  P.  Healy 
very  properly  brought  a  suit  in  trover  against 
both  of  them.  After  the  evidence  was  in,  D., 
for  defendants,  asked  the  Court  to  rule  that  the 
verdict  must  be  given  for  the  party  who  was  in- 
vited, as  he  had  nothing  to  do  with  the  hiring. 
The  Court  asked  D.  to  give  him  an  authority. 
D.  replied :  "  It  is  always  so  considered  among 
stable-keepers."  This  was,  I  think,  the  first  and 
the  last  time  that  I  ever  heard  stable  law  cited 
in  court. 

The  same  counsel,  D.,  asked  for  delay  one 
morning  because  of  the  absence  of  his  witnesses. 
On  being  asked  by  the  Court  if  they  had  been 
duly  summoned,  "  No,  your  honor,  if  they  had 
been,  I  should  have  got  them  in  by  habeas  cor- 
pus.''^ 

In  the  course  of  an  argument  to  the  jury,  the 
same  lawyer  said:  "The  trouble  is,  gentlemen, 


158  OBITER   DICTA. 

you  see  my  client  did  n't  git^  as  we  lawyers  say, 
his  quid  j)er  quodr 

On  the  first  Tuesday  of  18 — ,  the  Superior 
Court   was   opened   with   prayer   by   liev.   Dr. 

,    who    among    other    things    prayed    that 

litigants  might  have  their  cases  tried  fully  and 
fairly,  so  that  the  same  cause  should  not  come 
up  again.     At  the  close  of  the  week,  the  Rev. 

Dr.  received  a  letter  from  a  person  who 

said  that  he  had  a  cause  which  had  been  unde- 
termined after  one  or  two  attempts,  but  this 
time  it  had  been  determined  finally  and  prop- 
erly, and  he  (the  writer)  believed  it  was  en- 
tirely owing  to  the  Rev.  Doctor's  prayers. 

A  witness  was  asked  in  a  case  against  the 
West  End  Railroad :  "  What  seat  did  you  sit 
on  ?  "  Witness  ;  "  The  fourth."  Counsel : 
"  Who  was  the  person  who  sat  next  to  you  ?  " 
Witness :  "  The  one  who  is  now  my  wife." 
Counsel :  "  Were  you  engaged  to  her  ?  "  Wit- 
ness :  "  No,  I  was  not,  but  was  trying  to  be." 

In  a  suit  brought  by  a  lawyer  to  recover 
damages  for  his  client  who  was  thrown  from  a 
horse,  I  take  the  following  extract  from  the 
declaration :  "  Said  horse  was  unsafe,  unsuit- 
able, improper,  unkind,  vicious,  disordered,  and 
diseased." 


A   LAPSUS   LINGUA.  159 

Benjamin  F.  Cooke,  in  speaking  to  the  Court 
in  a  case  that  he  Avas  trying  in  which  his  client's 
horse  ran  over  a  little  girl,  called,  it  "  caus-al- 

ity." 

A  petition  for  review  was  being  heard  and  a 
witness  was  asked  :  "  Was  this  petition  brought 
before  you  gave  notice  to  take  the  poor  debtor's 
oath  in  the  original  suit?"  Witness  (to  his 
counsel)  :  "  What  shall  I  say  to  that,  Mr.  B.  ?  " 
B.  (quickly)  :  "  Say  you  don't  know."  Witness : 
*'  I  don't  know." 

A  lawyer's  versatility  was  once  shown  when  I 
was  present  in  the  Supreme  Court  room,  in  this 

manner :  Mr. was  arguing  a  case,  and  the 

Chief  Justice  said :  "  Brother ,  did  n't  you 

arsfue  a  case  before  us  some  months  since,  when 
you  took  precisely  the  opposite  ground  from 
that  you  take  to-day,  and  the  Court  sustained 
you?  "     "  Yes,  may  it  please  your  honors,"  said 

Mr. ,  "  but  if  I  was  wrong  yesterday,  I  am 

right  to-day." 

Dr.  J.,  testifying.  Counsel :  "  Did  you  say 
the  himierus  ?  "  Dr.  J. :  "I  said  the  femur  ;  if 
I  said  humerus,  it  was  a  lapsus  linguaB."  Coun- 
sel :  "  What  is  that  ?  "  Dr.  J. :  "  As  the  waiter 
said  when  he  dropped  the  cold  tongue,  '  That  is 
a  lapsus  linguae.' " 

Mr.  F.  was  telling  me,  and  another  man  who 


160  OBITER    DICTA. 

stood  by,  of  some  reniarkaLle  petrified  sub- 
stances lie  had  seen.  The  man  said :  "  It  is 
nothing:  to  what  I  have  seen  in  the  northern 
part  of  Maine ;  I  saw  a  rock  sj)lit,  in  which 
there  was  ajmtrejicd  frog,  which  had  been  there 
dominant  for  years." 

P.  Henry  Hutchinson,  being  in  the  office  of 
the  Clerk  of  the  Municipal  Court,  the  latter, 
who  was  a  very  cautious  and  non-committal  man, 
said,  "  Mr.  Connelly,  who  is  going  to  be  elected 
President  of  the  United  States?"  Mr.  Con- 
nelly:  "Mr.  Hutchinson,  I  don't  talk  politics 
or  religion,  but,  contrary  to  my  usual  custom,  I 
will  say  to  you  that  I  don't  think  Belva  Lock- 
wood  will  be  elected." 

In  a  case  where  one  Dr.  Fitch  sued  to  recover 
for  his  services,  he  was  asked  what  the  princi- 
pal medicine  was  he  gave  to  his  patients.  He 
replied  :  "  Alterative  medicines."  "  What  do 
you  consider  an  alterative  medicine  ?  "  said  the 
counsel.  The  doctor  said  he  considered  it  "a 
medicine  that  altered  his  patient  from  what  he 
was  to  what  he  is." 

Many  people,  especially  Americans,  go  into 
private  offices  with  their  hats  on,  and  keep  them 
on.  Mr.  Samuel  F.  McCleary,  the  late  City 
Clerk,  insisted  that  persons  who  visited  his  pri- 
vate office  should  remove  their  hats,  A  person 
came  into   his  office  one  day  with   his  hat  on, 


DR.    HOLMES'S    REWARD    OF    VIRTUE.     161 

and  said  :  "  Mr.  McCleaiy,  I  want  my  license." 
"  AVliat  are  you  licensed  for  ?  "  said  McCleary, 
looking  up  at  him.  "  To  lecture  on  mind  read- 
ing,'" said  he.  "  Mind  reading,"  said  McCleary, 
"  what 's  that  ?  "  "  Why,  I  lecture  and  tell  what 
is  going  on  in  people's  minds."  "  You  don't 
seem  to  know  what  is  going  on  in  mine,"  said 
McCleary.  "Why?"  said  the  other.  Said 
McCleary,  "  I  've  been  wondering  why  you 
did  n't  take  your  hat  off." 

One  morning  on  motion  day,  Mr.  Tompson 
stood  on  my  right,  and  Mr.  Kingsbury  on  my 
left,  each  with  a  hand  behind  his  ear,  botli  being 
very  hard  of  hearing,  and  I  was  calling  the  list. 
One  of  them  began  to  speak.  Said  I,  "•  Gentle- 
men, is  there  to  be  any  hearing  in  this  matter?" 
They  both  laughed  so  they  were  obliged  to  retire. 

I  went  into  S.  S.  Pierce's  one  day  to  buy 
some  cigars,  and  I  met  Dr.  Oliver  Wendell 
Holmes  doing  the  same  thing.  I  said,  "  Doctor, 
I  am  surprised  to  learn  that  you  are  a  smoker." 
"  Oh,  vei-y  moderate,"  said  he.  "  How  moder- 
ate ?  "  "  One  a  day,  the  last  thing  at  night ; 
that  is  the  reward  of  virtue." 

There  was  once  a  colored  man  on  the  jury, 
wdio  had  at  some  time  previous  meddled  a  little 
in  the  law.  The  jury  he  was  on  was  out  on  a 
case.  As  I  was  standing  in  the  corridor  talk- 
ing with  the  officer  who  had    them  in  charge, 


1C)L'  OHITKH    DICTA. 

there  was  a  loud  kuockiiijjj  I'luiu  the  inside  of 
the  jury  room.  The  offieer  stepped  to  the  door, 
opened  it  an  inch  or  two,  and  said,  "What's 
wanted  ?  "  This  juryman  answered,  "  Mr.  Os- 
sifer,  fetch  us  Ililliard  on  Torts  ;  "  but  the  officer 
did  n't  fetch  him. 

In  an  action  of  slander,  among  the  witnesses 
called  was  Melviu  O.  Adams ;  the  following 
questions  were  put  to  him,  and  his  answers  fol- 
L)wed  :  "What's  your  name?"  "  Melvin  O. 
Adams."  "What's  your  business?"  "I'm 
trying  to  practice  law."  In  the  same  case  the 
plaintiff  gave  the  following  testimony :  "  What 's 
your  name  ?  "  "  Wilson  AI.  Fay."  "  Your  busi- 
ness ?  "  "  Broker."  "•  IIow  long?  "  "  Twenty- 
five  years."  Cross-examination  :  "  You  publish  a 
paper  called  '  Miscellaneous  Stock  Exchange '  ?  " 
"Yes."  "  Who  composes  it  ?  "  "  Me  and  my 
customers."  "Are  the  seats  very  valuable?" 
"No  ;  free  to  all."  "  Were  you  elected  a  mem- 
ber to  the  regular  Stock  Exchange  ?  "  "  No, 
they  had  a  war  dance,  and  I  did  not  get  in." 
"  Were  you  not  rejected  ?  "  "  Yes,  I  got  every 
black-ball  there  was,  and  one  piece  of  paper 
with  '  No,'  written  on  it."  "  You  have  some 
hard  things  said  to  you  ?  "  "  Yes."  "  Come  to 
you  with  a  good  deal  of  feeling  and  call  you 
names  ?  "  "  Yes ;  keep  a  loaded  revolver  on  my 
desk  all  the  time." 


CROSS-EXAMINA  TIONS.  163 

Judge  Morton  was  once  examining  a  boy  who 
was  offered  as  a  witness,  and  asked,  "  Do  you 
goto  Sunday-school?"  "  Yes,  sir."  "What 
do  you  learn ?  "  "  To  speak  the  truth."  "  Are 
you  not  taught  about  God  ? "  "  Yes,  sir," 
"What  was  the  oath  for,  that  you  heard  given 
to  the  others  ?  "  "To  speak  the  truth."  "  Sup- 
pose you  do  not  ? "  "I  shall  be  burned  up 
with  fire  and  brimstone." 

Another  boy  who  was  examined  at  the  same 
time  answered  the  question,  "  Suppose  you  do 
not  tell  the  truth  ? "  "I  shall  be  punished 
hereafter." 

Stephen  B.  Ives  (examining  a  witness)  :  "  Did 
you  see  Mr.  Keith  there  ?  "  Witness  :  "  Yes, 
sir."  Ives :  "  What  did  yoxi  say  to  him  ? " 
Witness  :  "  I  do  not  remember."  Ives  :  "  Did 
you  speak  jocosely  ?  "  Witness  :  "  I  don't  know 
him."  Ives  (not  exactly  comprehending):  "Did 
you  speak  jocosely  ?  "  Witness  (angrily)  :  "  I 
tell  you  I  dou't  know  Jo  Cosely." 

Mr.  Ives  was  very  severe  in  his  examination 
of  witnesses,  and  especially  in  his  cross-exami- 
nations. They  were  literally  cross  examina- 
tions. Mentioning  this  one  day  to  the  late 
Judge  Charles  P.  Thompson,  of  the  Superior 
Court,  "  Yes,"  he  said,  "  brother  Ives's  examina- 
tions are  very  much  like  the  dews  of  heaven, 
which  fall  alike  on  the  just  and  unjust." 


1G4  OBITER    DICTA. 

The  following'  colloquy  occurred  hetweon  Mr. 
R.  anil  Mr.  S.,  J)r.  A\'aiker  on  the  stand.  Mr. 
K. :  "  Now,  Doctor,  you  are  an  expert,  and  have 
attended  the  whole  trial  ?  "  Doctor  :  "  Yes, 
sir."  Mr.  II.:  "You  get  fifty  dollars  a  day?" 
Doctor :  "  That  is  the  rule ;  I  don't  always 
get  it."  Mr.  K. :  "  Well,  I  don't  say  it  in  a  dis- 
couraging way."  Mr.  S.  :  "  What  did  you  ask 
it  for,  then  ?  "  Mr.  R.  (to  the  Court)  :  "  Am 
I  to  answer,  or  are  remaiks  to  be  made  thus  to 
me?"  The  Court:  "I  don't  know  why  coun- 
sel may  not  speak  to  each  other.  Counsel  al- 
ways do,  when  they  think  they  can  make  a 
telling  remark  ;  that  was  a  very  pertinent  ques- 
tion, but  I  suppose  the  proper  place  to  answer 
it  is  in  the  argument."  Mr.  S. :  "I  asked  him 
what  he  asked  him  such  a  question  for,  if  it  was 
not  to  hit  him  ?  "  Mr.  R.  :  "I  am  always  ready 
to  answer  questions  when  they  are  put  civilly 
and  in  a  gentlemanly  way."  Mr.  S.  :  "  Oh 
Lord,  you  don't  know  what  is  civil  and  gentle- 
manly, and  never  did." 

In  a  suit  to  recover  damages  for  negligence 
in  the  case  of  a  horse,  the  following  occurred : 
"  Did  you  see  some  trotters  there  ?  "  Witness  : 
"  They  called  them  trotters,  I  don't  know 
whether  they  were  or  not."  Counsel :  "  Did 
you  see  Smith  wash  the  noses  of  any  horses 
besides  the  one  on  trial?"     Witness:    "Yes." 


FRES/I    YOUNG   LAWYERS.  165 

Counsel :  "  Whose  ?  "  Witness  :  "  The  mare 
of  Cobb's."  Counsel :  "  Oh,  Mayor  Cobb's  ?  " 
Witness:  "Not  Mayor  Cobb's,  but  Cobb's 
mare." 

The  assumption  of  knowledge  on  tlie  part  of 
some  young  lawyers  fresh  from  coJlege  and  the 
Law  School  defies  description.  After  having 
been  in  practice  some  years,  they  are  perfectly 
willing  to  admit  that  they  do  not  know  as  much 
as  they  thought  they  did  at  the  start.  Often  if 
the  clerk  presumes  to  show  them  that  they  are 
wrong,  they  complain  that  the  clerk  is  cross, 
but  after  a  few  years  they  take  a  different  view, 
and  come  to  him  to  learn  matters  of  practice, 
which  before  they  thought  they  knew  all  about. 
I  give  an  instance  :  A  number  of  years  ago 
a  lawyer,  Mr.  Cole  (this  is  not  his  name),  was 
trying  a  case  for  some  railroad  which  ran  into 
the  northern  part  of  Vermont.  I  had  a  mare 
there,  and  wanted  to  go  to  see  her.  It  was 
quite  an  expensive  trip,  and  I  asked  Cole  if  he 
could  not  give  me  a  jjass  up  and  back,  so  I 
could  see  my  colt.  He  said  :  "  Yes,  with  great 
pleasure,"  and  did  so,  and  I  went.  When  I 
came  back,  I  informed  Mr.  B.,  from  whose  of- 
fice Cole  had  graduated  some  years  before,  of 
the  kindness  of  Mr.  Cole.  "Now,"  said  Mr. 
B.,  "  I  '11  tell  you  something.  Shortly  after 
Cole  commenced  studying  in  my  office,  I  sent 


166  OBITER    DICTA. 

him  to  yoiir  office  to  get  something,  and  he 
came  back  with  his  face  as  red  as  a  turkey- 
cock's  and  said,  '  Mr.  B.,  you  never  need  send 
me  to  that  office  again,  sir,  for  I  won't  go 
there.'  '  What 's  the  matter  ?  '  I  said.  '  Oh,' 
said  Cole,  '  that  darned  Willard,  he 's  as  cross 
as  a  bear.'  '  Pooh,'  said  I,  '  you  don't  know 
Willard ;  you  probably  went  in  there  thinking 
you  knew  more  than  all  the  rest ;  you  keep  on 
going  there,  and  when  you  want  to  know  any- 
thing, ask  Willard  to  show  you,  and  if  he 
does  n't  I  'm  very  much  mistaken.'  "  This  was 
the  first  I  had  known  of  any  trouble  with  Cole, 
and  he  and  I  were  afterwards  the  best  of 
friends. 

It  is  related    that    some   one  said    to  Judge 

,  "  Judge,  ISIr.  C.  has  been  offered  a  seat  as 

Judge  on  the  Supreme  Judicial  Court."  "  Has 
he,  indeed?"  Visitor:  "Yes,  sir."  Judge: 
"  Well,  what  does  he  say?  "  Visitor :  "  He  has 
declined  it."  Judge:  "Ah,  has  he?"  Vis- 
itor :  "  Yes,  sir."  Judge  :  "  Well,  sir,  he  shows 
better  judgment  than  the  one  who  offered  it  to 
him." 

The  following    facts  appeared    in  court   one 

day :  Deacon was  a  director  in  the  

Bank.  A  person  who  was  owing  the  deacon 
applied  to  the  bank  to  have  his  note  discounted ; 


A    THRIFTY   DEACON.  167 

the  deacon  recommended  it,  and  it  was  done. 
The  deacon  thereupon  brought  ^  suit  against 
the  man  who  had  his  note  discounted,  and  sum- 
moned the  bank  as  trustee. 

In  a  case  Mr.  Park  asked  a  witness  :  "  What 
did  Smith  say  to  you  at  the  time  of  the  colli- 
sion ?  "  Witness  :  "  He  told  me  to  go  to  h — 1." 
Park :  "  And  so  you  went  to  a  lawyer." 

A  woman  plantiff  who  had  testified  in,  chief 
about  a  barrain  she  had  made  was  asked  on 
cross-examination:  "Now,  who  was  present 
when  this  bargain  was  made  ?  "  "  Now,  on  me 
honor,  nobody  but  God,  Mrs.  O'Toole,  and 
meseK." 

A  witness  was  testifying  about  being  bitten 
by  a  dog  a  year  before.  The  counsel  asked 
him  to  tell  about  it,  when  he  went  out  of  the 
way  to  say :  "  I  don't  sleep  much  nights." 
Counsel :  "  I  did  n't  ask  you  about  your  sleep- 
ing ;  /  don't  sleep  very  well,  but  I  try  to  bear 
up  under  it.  What  did  the  owner  say,  when 
you  asked  him  to  kill  the  dog  ?  "  Witness  : 
"  '  Faith,'  says  he,  '  I  'd  sooner  kill  you,  than 
the  dog.'  "  Counsel :  "  How  did  he  appear  ?  " 
Witness :  "  He  was  kind  o'  frothing  in  his 
mouth,  and  kind  o'  oneasy  in  his  mind." 

Mr.  M.  asked  a  female  witness  if  she  knew 
anything  against  the  character  of  a  certain  per- 
son.    Witness :    "  No,    not    much."     Mr.    M. : 


KiS  on  ITER    DICTA. 

"•  "What  have  you  heard  ?  "  Witness :  "  I  have 
heard  he  wa^  somewliat  intemperate,  and  went 
■svith  other  women,  but  I  never  heard  anything 
against  his  moral  character." 

A  case  was  committed  to  the  jury  one  Friday 
afternoon,  and  they  deliberated  upon  it  until 
ten  P.  M.,  when  they  were  discharged  by  order 
of  court  because  they  could  not  agree.  They 
separated,  and  came  into  court  the  next  Mon- 
day morning  after  a  period  of  two  and  a  half 
days.  Upon  being  asked  by  me  if  they  had 
agreed  upon  a  verdict,  the  foreman  answered 
no,  but  that  they  wished  to  deliberate  further. 
The  court  of  course  said  it  would  be  irregular, 
but  if  counsel  would  consent  they  might  do  so. 
The  counsel  consented  ;  the  jury  went  out,  and 
in  about  half  an  hour  agreed  upon  a  verdict  for 
the  plaintiff.  The  joke  of  the  matter,  which  did 
not  then  appear,  was  this :  the  counsel  for  the 
plaintiff  and  the  counsel  for  the  defendant  each 
felt  sure,  when  the  jury  went  out,  that  he  had 
ten  jurors  in  his  favor. 

A  larofe  woman  was  libellee  in  a  libel  for 
divorce.  The  deputy  who  served  the  libel 
wrote  to  the  counsel  for  the  libellant  that  she 
was  a  very  large  woman,  but  that  he  had  served 
the  libel  on  as  much  of  her  as  he  could  that 
day,  and  had  strong  hopes  of  being  able  to  fin- 
ish it  the  next. 


.SCJ/i;   PRECISE    VERB  I  AGE.  169 

In  a  case  of  Dows  vs.  some  insurance  com- 
pany to  recover  damages  for  the  loss  of  his  stock, 
the  plaintiff  said  :  "  I  saved  a  few  bottles  of 
Epicurean  sauce."  General  Butler :  "  What 
kind  of  sauce  is  that,  pray  ?  I  might  like  some." 
Plaintiff :  "  I  will  send  you  a  bottle."  Mr. 
Train :  "  Oh,  don't,  he  has  enough."  Gen- 
eral Butler  :  "  You  said  the  soda  fountain  was 
broken;  how  broken?"  Plaintiff:  "It  was 
disintergated.''^ 

In  an  action  pending,  Mr.  A s  appeared 

as  senior  counsel ;  in  moving  for  a  postpone- 
ment, as  he  had  newly  appeared  and  was  not 
quite  familiar  with  the  case,  he  said  (with  a 
slight  flourish)  :    "  I  appear    in   this   case,  and 

I  lio^je  it  will  not  disturb   my  brother  A y, 

who  is  opposed  to  me."     Mr.  A y  :  "  Oh  no, 

I  am  not  at  all  disturbed ;  on  the  contrary,  I 
am  highly  gratified,  for  I  shall  now  move  to  in- 
crease the  ad  damnum^ 

Mr.  G.  was  trying  an  action  of  tort,  in  which 
he  sought  to  recover  damages  for  injuries  to  his 
client,  and  said,  "  He  was  jmrticipated  over  the 
cliff"  into  a  hole."  His  senior  counsel  nudged 
him  and  said,  "  Precipitated."  "  Yes,  "  said  G., 
'■'■  jyrejnirticipated  over." 

A  witness,  a  member  of  the  Suffolk  bar,  was 
testifying,  and,  upon  being  asked  what  were  the 
terms  of  the  agreement,  answered,  "  I  did  not 
learn  the  precise  verbiage.''^ 


170  OBITER   DICTA. 

In  an  accident  case,  after  the  witness  had 
testified  to  the  facts,  Colonel  George  said  to 
him  :  "  What  did  you  do  then  ?  "  To  which 
witness  replied :  "  I  went  to  the  rescue,  as  a 
lawyer  goes  for  a  man's  pocket-book." 

In  a  suit  to  recover  the  price  of  some  barrels, 
a  Mr.  Hale  of  New  Hampshire  (not  John  P.) 
was  a  witness.  Mr.  O'Brien  :  "  Where  did  you 
buy  your  barrels?"  Witness:  "Of  Doherty 
Brothers."  O'Brien  :  "  Are  they  barrel  deal- 
ers ?  "  Witness  :  "  No,  liquor  dealers,  shame  to 
them."  O'Brien  :  "  Are  they  dealers  in  cider  ?" 
Witness :  "  That  is  one  of  God's  blessings." 

Mr.  H.  was  arguing  as  to  the  testimony  of 
various  witnesses,  and  the  absence  of  some  of 
them  in  a  case  ;  among  the  latter  was  a  well- 
known  man  named  Richardson,  whose  death 
was  generally  rej^orted  ;  Mr.  H.  said  :  "  Mr. 
Foreman  and  gentlemen,  Richardson  is  dead, 
and  he  can't  tell  you  what  passed."  Mr.  C. : 
"There  is  no  evidence  that  he  is  dead."  Mr. 
H. :  "  Then  he  is  nt  dead."  Mr.  C. :  "  Then 
why  don't  you  produce  him  ? "  As  Dr.  Holmes 
says,  "  Logic  is  logic,  that  's  all  I  say." 

In  a  suit  of  trover,  to  recover  for  some  arti- 
cles taken  from  a  hotel,  Mr.  Hutchinson  said : 
"  Whose  knives  ai'e  these  ?  "  (showing  them  to 
the  witness).  Witness  (examining  them)  : 
"  These  are   Rogers  knives."     Mr.  H  :   "  How 


INSUFFICIENT   EVIDENCE.  171 

do  you  know  ?  "  Witness  :  "  General  feel,  mark, 
and  look."  Mi-.  11 :  ''  Is  that  all  ?  "  Witness : 
''No."  Mr.  H:  "How  else  do  you  know?" 
Witness:  "Dealt  in  'em."  Mr.  H:  "How 
else  do  you  know ?  Did  you  see  these  made?" 
Witness  :  "  No."  Mr.  H  :  "  How  do  you  know 
then?  "      Witness  :  "  Give  it  up." 

Lawyer :   "  I  have  summoned  a  witness 

to  appear  in  this  case,  and  paid  him  his  fees,  and 
he  has  not  appeared.  I  move  for  a  capias  to 
bring  him  into  court."  Court  (reading  the 
return  of  the  officer)  :  "  It  appears  that  he  was 
paid  for  yesterday  ;  have  you  paid  him  for  to- 
day ? "    "  No,   your    honor."      Judge    B : 

"  I  have  sat  on  this  bench  too  long  "  —  "  Yes, 
your  honor."  Judge,  continuing,  —  "  to  grant 
such  a  motion." 

In  an  accident  case  in  which  a  woman  was 
knocked  down  upon  the  sidewalk  by  a  horse, 
and  injured  very  much,  she  said,  "  I  thinh  some- 
body helped  me  up."  Mr.  D  :  "  Not  what  you 
think,  what  you  know."  Witness  :  "  I  guess 
you  would  u't  have  knoivn  much  under  the  cir- 
cumstances." 

Mr.  C.  sat  writing  one  day,  and  a  person  who 
interrupted  him  said,  "  What  are  you  writing?  " 
Receiving  no  answer,  he  repeated  the  question. 
Mr.  C.  replied  somewhat  hastily :  "  The  life  of 


172  OBITER    DICTA. 

a  jackass."     "  Autol)i<)gTa])liy,  Ly ,"  replied 

the  other. 

About  the  years  1847  and  1848,  William 
Ililliard  got  into  the  habit  of  taking  eases  up 
to  the  Supreme  Judicial  Court  on  sham  and 
special  demurrer.  He  was  riding  one  day 
through  Broadway  in  Cambridgeport,  when  the 
horse  shied  at  a  pile  of  boards,  and  threw  him 
and  his  companion  out  of  the  vehicle.  Mr. 
Hilliard  was  badly  hurt.  Some  carpenters  who 
were  engaged  at  work  on  a  building  near  by 
rushed  out,  and,  seeing  that  he  was  injured,  one 
of  them  exclaimed  :  "  How  shall  we  take  him 
up  ?  "  The  other  lawyer,  who  was  not  hurt,  per- 
haps because  he  was  a  little  "  set  up,"  answered : 
"  Take  him  up  on  a  sh  sham  demurrer." 

In  an  action  by  a  woman  against  the  jjroprie- 
tors  of  India  Wharf  to  recover  damages  for 
falling  through  a  hole  in  the  sidewalk  or  a  part 
of  the  wharf,  a  number  of  witnesses  were  intro- 
duced who  testified  that  their  ages  were  respec- 
tively from  eighty-five  to  eighty-seven  years. 
Mr.  C.  said :  "  This  hole  was  covered  by  boards 
as  old  as  the  witnesses  who  have  been  called  for 
the  defense."  Mr.  R.  in  closing  said :  "  My 
young  friend  does  this,"  etc.  ;  and,  "  my  young 
friend,  when  he  has  more  experience,"  etc.,  and, 
"  now  I  '11  sit  down  and  let  my  young  friend 
make  a  speech."     Mr.  C.  :  "I  am  young,  I '11 


AX    UNWILLING   JUROR.  173 

acknowledge,  but  I  know  of  one  phrase  ap- 
plicable to  my  brother,  which  is,  '  Superfluous 
lags  the  veteran  on  the  stage.'  " 

A  gentleman  who  lived  in  the  Back  Bay  pre- 
cinct, whom  I  knew  very  well  some  years  ago, 
and  who  had  also  knowoi  me  but  had  j^robably 
forgotten  me,  came  into  my  office,  when  the  fol- 
lowing conversation  ensued :  — 

He :  "  I  am  drawn  as  a  juror  for  the  October 
term." 

I:  "Yes,  sir." 

He :  "  I  am  living  out  of  town." 

I :  "  Do  you  mean  that  you  are  not  a  citizen 
of  Boston  ?  "  (knowing  that  he  was.) 

He :  "  No,  but  I  am  living  out  of  town,  and 
shall  not  return  until  November." 

I :  "  That  is  no  excuse." 

He  :  "I  am  sick." 

I :  "  You  look  very  well,  and  ought  to  do 
your  duty  as  a  juror  ;  look  at  Mr.  Randall,  the 
late  Speaker  of  the  House  of  Representatives  at 
Washington,  who,  when  drawn,  served  as  a 
juror  in  his  State  of  Pennsylvania,  and  would 
not  be  excused." 

He :  "  Randall  is  an  ass,  sir ;  do  talk  a  little 
common  sense." 

I :  "  I  can't ;  you  monopolize  it  all." 

This  checked  him  for  a  moment,  but  he  went 


174  OH  IT  Eli   hlCTA. 

on  in  the  same  strain,  intimating  that  he  should 
not  eonie. 

I :  "  The  Court  will  send  an  officer  for  you." 
He  :  "  Hang  the  officer." 
I :  "He  would  not  like  that." 
He  (emphatically)  :  "  Good-day,  sir." 
In  the  afternoon  he  came  in  and  said,  "  Mr. 
Willard,  I  have  come  to  apologize  for  my  hasti- 
ness   this   morning."     I    accepted   it,  and  told 
him  I  had  all  kinds  of  people  to  deal  with  and 
tried  generally  to  adapt  myself  to  them. 

Said  a  certain  lawyer :  "  Mr.  Thomas,  I  am 
surprised  that  you  should  bring  this  action  ;  you 
have  n't  a  single  predicate  to  stand  on." 

The  same  lawyer,  who  was  trying  a  cause  for 
a  plaintiff  who  had  fallen  downstairs  and  hurt 
his  knee,  asked  a  physician  this  question :  "  Was 
the  concomitant  cause  of  the  contusion  the  fluc- 
tuation of  fluid  from  the  knee-joint  of  this  plain- 
tiff?" In  closing  his  argument  he  said:  "And 
now  I  will  close  this  case,  gentlemen,  as  I  think 
I  have  been  over  it  from  frontispiece  to  furnis." 

Mr.  Murdock,  of  the  Liquid  Food  Company, 
brought  a  suit  against  the  Boston  and  Albany 
Railroad  for  being  forcibly  put  off  the  cars.  He 
was  arrested  at  some  town  on  complaint  of  the 
railroad  authorities  and  kept  in  confinement  over- 
night, but  the  accusation  turned  out  later  to  be 


AN  INACCESSIBLE    CLIENT.  175 

a  mistake,  and  he  was  released.  During  the 
time  of  his  arrest,  when  offered  some  food,  he 
drew  from  his  pocket  a  half-jjint  bottle  of  the 
Liquid  Food,  upon  which  he  said  he  could  live 
for  a  week,  but  the  experiment  was  not  tried. 
He  said  he  went  on  the  ''''owl  train,^^  sometimes 
called  the  ''Modoc  trains  Mr.  M. :  "  It  might 
well  be  called  the  '  Murdoch  train.'  "  Mr. 
Murdock :  " '  Twas,  that  night." 

In  the  same  case  Mr.  H.,  counsel  for  the  road, 
challenged  two  jurors,  and  Mr.  M.  challenged 
two.  There  were  not  enough  jurors  in  court  to 
fill  their  places,  of  which  I  informed  counsel. 
Then  Mr.  M.  said  :  "  I  '11  go  on  with  eight,  or, 
if  Mr.  H.  will  withdraw  his  challenges,  I  will 
mine." 

An  action  was  brought  against  Corbett  the 
pugilist  for  breach  of  contract  in  not  appearing 
to  perform  at  a  certain  exhibition  ;  Judge  S. 
presiding.  Counsel  objected  to  a  certain  piece 
of  evidence.  Judge  S.  :  "  As  referee  in  this 
case  I  think  it  is  rather  broad."  (Shouts  of 
laughter.) 

"  May  it  please  your  honor,"  said  a  lawyer, 
when  his  case  was  called  for  trial,  "  I  am  not 
ready ;  my  client  is  one  of  the  steeple-climbers, 
and  he  is  now  on  the  toji  of  the  Old  South 
Church,  out  of  reach  and  sound."     "  Well,  Mr. 


176  OBITER    DICTA. 

G.,"  said  the  Court,  "  I  presume  the  Court  has 
not  the  power  to  get  him  down." 

In  1887,  a  case  was  tried  in  which  a  woman 
sued  the  City  of  Boston  for  -f  10,000  for  inju- 
ries received  from  falling  on  an  icy  sidewalk 
and  breaking  her  leg.  After  the  case  had  gone 
to  the  jury,  I  was  shown  a  letter  written  to 
the  presiding  justice,  which  stated  that  she  and 
her  husband  were  disreputable  people,  that  her 
pseudonym  was ,  that  her  husband  and  her- 
self had  a  fight,  that  he  had  pushed  her  down- 
stairs, causing  her  to  break  her  leg,  and  that  in 
order  to  recover  damages  he  carried  her  out  to 
the  sidewalk  to  make  it  appear  that  she  did  it 
there. 

A  case  was  tried  in  which  one  Casson  sued 
Myrick  to  recover  damages  by  reason  of  a  stal- 
lion of  Myrick,  or,  as  counsel  said,  "  chawing 
up  a  pony  of  Casson."  The  pony  died  and  Cas- 
son wanted  fifty  dollars  for  him.  Many  wit- 
nesses, who  had  formerly  owned  the  pony,  were 
examined  for  the  defendant.  One  witness  testi- 
fied that  he  gave  $1.50  for  him.  "  How  long 
did  you  keep  him  ?  "  "  No  longer  than  I  could 
help."  "  Did  he  eat  well  ?  "  "I  kept  him  alive 
by  giving  him  gruel."  "  What  did  you  do  with 
him  ? "  "I  put  him  in  a  raffle  for  ten  dollars  at 
twenty-five  cents  a  ticket."  The  defendant  tes- 
tified that  he  had  a  knowledge  of  horses,  and 


A   REMARKABLE   POXY.  177 

thought  that  this  pony  was  about  forty  years  old. 
"  Why  do  you  think  he  was  forty  ?  "  "  There 
is  a  horse  near  me  thirty-five  years  old,  owned 
by  my  neighbor,  and  the  pony  looks  the  oldest." 
"  Did  you  lend  your  whiffletree  to  the  boy  who 
drove  the  pony  ?  "  "  Yes  ;  but  he  could  n't  draw 
the  whiffletree."  "  Did  you  see  the  pony  hitched 
to  the  whiffletree  and  the  boy  driving  ?  "  "  Yes  ; 
and  he  could  n't  draw  it."  "  Was  that  the  time 
you  looked  him  over  and  made  up  your  mind  as 
to  his  age?"  "Well,  somewhat."  "Wasn't 
you  thinking  more  of  your  whiffletree  than  you 
were  of  the  pony  ?  "  "  Yes  ;  I  thought  my  whif- 
fletree was  worth  the  most,"  On  reading  the 
first  clause  of  this,  as  to  the  stallion  "  chawing 
up  the  boy,"  to  my  kinsman,  Joseph  W^illard,  he 
observed  that,  as  all  flesh  is  grass,  the  horse 
was  n't  so  far  out  of  the  way. 

A  man  who  sued  for  damages  for  injuries  sus- 
tained by  a  fall,  while  testifying,  was  asked, 
"You  were  in  the  Custom  House?"  "Yes." 
" Did  you  leave ?  "  "I  got  my  ticket-of -leave 
from  Collector  Saltonstall."  "  Was  you  at  all 
set  up  when  you  fell  in?"  "No;  sober  men 
fall  in  sometimes."  "Do  they?"  "Yes;  / 
did." 

I  heard  an  expression  by  a  witness  lately, 
which  I  had  never  heard  before.  He  said, 
" 's  brother  wanted  to  take  him  into  part- 


178  OBITER   DICTA. 

iiership,  nnd  I  told  him  that  that  ship  is  the 
worst  sliip  a  person  can  sail  in." 

A  luau  of  sixty,  but  appearing-  much  older, 
sued  a  woman  of  twenty-tive  to  recover  ^200, 
when  the  following  took  place.  Cross-examina- 
tion of  the  plaintift' :  "  You  loaned  the  money 
because  you  thought  she  was  going  to  marry  you, 
did  n't  you  ?  "  "  Yes."  "  She  is  about  twenty- 
three  years  old,  is  n't  she?"  "I  don't  know." 
"  She  sits  up  there  ;  look  at  her."  "  You  can't 
tell  anything  about  the  age  of  'em."  "  Why 
did  n't  you  marry  her  ?  "  "  Marry  her  ?  every- 
thing was  ready  for  the  marriage,  and  then  she 
backed  out."  "  You  gave  her  a  cloak,  did  n't 
you  ?  "  "  No  ;  I  paid  for  it,  but  I  did  n't  give  it 
to  her."  "  You  took  her  to  Jordan  &  Marsh's, 
did  n't  you  ?  "  "  No  ;  she  took  me  there."  "  If 
she  had  married  you,  you  would  n't  have  asked 
her  to  pay  you  back,  would  you  ?  "  "  She  prom- 
ised to  pay  me  for  everything,  dresses  and  all." 

Mr.  B.  was  a  lawyer  of  no  great  abilities, 
but  he  had  quite  a  large  practice,  and  when  he 
died  he  left  a  large  property.  He  was  impul- 
sive, always  committing  some  faux  pas.  There 
was  a  firm  doing  business  under  the  name  of 
Tinkham,  Adams  &  Co.  On  the  eve  of  their 
failure,  John  Q.  Adams,  the  principal  member 
of  the  firm,  bought  on  credit  a  lot  of  cigars  of 
Deshon  &  Co.,  Clark  &  Co.,  and   others,  and 


A   DAMAGING   ADMISSION.  179 

pledged  them  to  raise  some  money  to  a  firm 
engaged  in  the  shoe  business,  named  Bigelow 
Brothers.  Deshon  and  Clark,  learning  of  this 
transaction,  replevied  the  cigars,  and  the  action 
came  on  for  trial.  Edward  D.  Sohier  appeared 
for  the  plaintiffs,  and  Mr.  B.  for  the  defense. 
Mr.  Sohier  had  the  close.  Adams  was  not  in 
court,  but  Tinkham  was  ;  yet  neither  of  them  was 
called.  Mr.  Sohier  in  his  argument  said  :  "  Now, 
gentlemen  of  the  jury,  perhaps  you  will  ask  why 
we  didn't  call  John  Q.  Adams?  We  say  he  is 
a  rascal ;  the  other  side  will  tell  you  he  is  an 
honest  man."  Up  jumped  Mr.  B.  and  said : 
"  No,  we  say  he  is  a  rascal,  too."  "  Ah,  do  they, 
gentlemen,"  said  Mr.  Sohier  quickly;  "what 
did  they  deal  with  him  for,  then  ?  "  The  jury- 
men looked  at  each  other,  and  I  saw  by  their 
looks  that  Mr.  Sohier  had  gained  his  cause. 

Mr.  B.  had  gray  hair,  but  came  into  court  one 
morning  with  it  dyed  dark.  Some  one  called 
the  attention  of  Mr.  Sohier  to  it.  "  Oh,"  said 
he,  "  I  believe  brother  B.  is  trying  to  get  over 
his  light-headedness."  Mr.  B.  had  a  client  who 
owned  a  savage  dog.  He  bit  a  person,  and  the 
owner  was  mulcted  in  damages.  He  went  to 
Mr.  B.  and  asked  what  he  should  do.  Mr.  B. 
said :  "  Take  off  his  collar,  turn  him  loose,  and 
we  '11  call  him  fera  natiirmr  He  did  so,  and 
the  doo;  bit  another  man.     The  man  who  was 


180  OBITER   DICTA. 

bitten  traced  him  to  his  owner  and  brought  a 
suit  ngainst  liiin.  Mr.  15.  set  up  the  above  de- 
fense. Th(!  judge  said  :  "  Do  you  actually  rely 
on  tlmt  defense,  Mr.  B.  ?  "  "  Yes,  your  honor," 
sai<l  Mr.  B.  "  Well,  sir,"  said  the  judge,  "  then 
I  shall  instruct  the  jury  to  return  treble  dam- 
ages." So  Mr.  B.  had  to  amend.  lie  was  not 
a  very  successful  lawyer  in  getting  verdicts,  and 
at  one  time  the  bar  bestowed  upon  him  the 
sobriquet  of  the  anvil,  he  was  beaten  so  often  ; 
but  he  was  very  successful  financially. 

Mr.  R.  and  Mr.  T.  were  opposing  counsel  in 
the  trial  of  a  case.  R.  said  to  T. :  "  Don't  insist 
on  putting  questions  which  the  Court  have  ruled 
incompetent ;  it  is  n't  professional  or  honorable." 
T. :  "  The  professional  part  I  '11  take  care  of, 
and  as  for  honor,  it  is  n't  for  you,  who  have  so 
little  of  it,  to  talk  about." 

When  I  first  went  into  the  office,  policies  of 
insurance  contained  the  clause,  "  insuring  against 
loss  by  fire,  etc.,  excepting  loss  caused  by  riot, 
foreign  invasion,  or  the  act  of  God."  One  J. 
G.,  who  brought  suit  upon  such  a  policy,  in  or- 
der of  course  to  avoid  the  excepting  part  of  the 
policy,  after  declaring  on  it,  set  out  further  in 
his  declaration  that  the  loss  occurred  by  a  peril 
insured  against ;  not  by  riot,  foreign  invasion,  or 
by  the  act  of  the  aforesaid  God.  I  dislike  to 
make  comments  and  want  to  state  facts  only; 


A    FAITHFUL    CAPTAIN.  181 

but  —  possibly   there   might    have   been   some 
other  God  that  J.  G.  worshiped. 

A  certain  person  was  nominated  for  the  office 
of  Judge  of  the  Court  of  Common  Pleas.  A 
lawyer  to  whom  the  fact  was  mentioned  said  : 
"  I  did  n't  see  it  in  the  morning  papers." 
"  Oh,"  was  the  reply  ;  "  did  you  look  under  the 
head  of  accidents  ?  " 

The  judges  having  agreed  that  one  might 
leave  the  bench  while  the  other  would  take  his 
place  for  a  week,  the  judge  on  vacation  stayed 
away  a  fortnight.  On  returning  he  said  to  his 
somewhat  irate  brother  :  "  I  got  away,  and  was 
tempted  by  a  good  time  to  stay  away  a  week 
longer  than  I  intended."  "  May  God  forgive 
you,"  said  the  judge.  "  Never  mind  that,  if 
you  '11  forgive  me,"  said  the  other. 

James  Boyle  was  crier  of  the  court  for  many 
years ;  he  was  a  thick-set  man,  with  a  very  bald 
head.  The  Court,  Chief  Justice  Wells,  sat  a 
long  time  after  the  usual  hour,  in  order  to  finish 
the  testimony  of  a  witness  who  was  captain  of  a 
vessel,  and  who  said  he  must  sail  the  next 
morning.  Mr.  Boyle  adjourned  the  court  in  the 
usual  form  :  "  All  persons  having  anything 
further  to  do,  etc.,  may  depart  hence,  and  give 
their  attendance  at  this  place  to-morrow  morning 
at   nine   o'clock."     Mr.  Henry  F.  Durant  was 


182  OBITER    DICTA. 

for  the  ])l;iiiitiff ;  ]Mr.  R.  II.  Dana  for  the  defense. 
The  next  morning-,  to  the  astonishment  of  Mr. 
Dana,  Mr,  Dnrant  asked  leave  to  have  Cap- 
tain   take  the  witness  stand  and  testify  to 

a  matter  of  great  importance.  After  some 
discussion,  the  motion  was  allowed,  and  the  cap- 
tain testified.     Then  ]\Ir.  Dana  cross-examined  : 

"  Captain  ,  how  came  you  here  ?  "    "I  was 

summoned  here."  "Who  summoned  you?" 
"The  Court."  "What  do  you  mean?  Did 
his  honor  on  the  bench  summon  you?"  "I 
don't  know  what   you  call  him,"  said  Captain 

,   "  but   that  fat,    bald-headed    fellow   out 

there  told  us  to  depart  hence  and  give  our 
attendance  here  to-morrow  morning,  and  so  I 
come." 

An  Irish  witness  was  asked  :  "  What  do  you 
know  of  the  defendant's  reputation  ?  "  "  Faith, 
I  know  this,  that,  rather  than  live  with  her, 
I  'd  marry  the  devil's  daughter  and  go  home 
and  live  with  the  old  folks." 

The  identity  of  a  cow  was  curiously  proved,  to 
establish  the  ownership  of  the  animal.  A  witness 
for  the  plaintiff  testified  that  as  the  beast  was  in 
the  habit  of  straying  he  inserted  under  a  little 
slip  in  the  skin  of  her  right  fore  shoulder  a 
five-cent  piece  of  the  date  of  the  year  1845. 
The   jury    and    a   surgeon    were    sent    to    view 


A    CURIOUS   RAILROAD    CASE.  183 

the  cow,  and  there  found  the  coin,  perfectly 
identifying  the  animal.  The  same  witness, 
being-  asked  whether  he  was  interested  in  the  case, 
replied :  "  I  am  not  interested,  and  I  am  not 
disinterested." 

An  action  was  brought  by  a  party  to  recover 
damages  for  being  run  into  by  a  sleigh  fi'om  be- 
hind, overturning  the  plaintiff's  sleigh  and  throw- 
ing him  over  the  dasher.  The  defendant  con- 
troverted the  fact,  and  put  on  a  witness,  saying  to 
him  :  "  Now  show  the  jury  how  far  the  plaintiff 
went  over  the  dasher."  The  witness,  leaning 
over  the  bar  of  the  witness  stand,  tipped  it  over 
and  fell  his  whole  length  upon  the  floor.  Said 
the  counsel  for  plaintiff :  "  I  believe  that 's  the 
truth  of  our  case." 

W.  had  a  curious  case  with  the  Boston  and 
Albany  Railroad,  which  brought  out  the  inge- 
nuity of  Mr.  Charles  A.  Welch.  W.,  his  sister, 
and  another  young  lady  who  was  visiting  them 
at  Cambridge,  went  to  the  Boston  Theatre  one 
night.  After  the  performance  they  reached  the 
Albany  station  to  take  the  train  just  as  it  was 
starting,  having  no  time  to  purchase  tickets. 
They  were  going  as  far  as  Cottage  Farm.  The 
fare  was  ten  cents  with  a  ticket,  and  fifteen  cents 
without.  After  the  train  passed  the  Know- 
Nothing  Station,  the  conductor  came  for  the 
fares,  and  was  offered   thirty  cents,  which  he 


ISI  OlilTKR    DICTA. 

refused,  saying  that  he  must  have  forty-five. 
W.  told  him  he  had  no  time  to  purchase  tickets, 
and  that  tliis  was  all  he  should  give  him.  The 
conductor  said  the  station  was  so  near  it  would 
not  pay  to  stop  the  train  to  put  him  off,  but  that 
he  would  take  his  name.  They  got  off  at  Cot- 
tage Farm.  The  next  morning  the  attorney  of 
the  railroad  went  to  W.  and  asked  him  if  he 
would  pay  the  forty -five  cents.  He  told  him  no, 
and  thereui)on  the  attorney  of  the  road  brought 
a  suit  against  him  to  recover  the  forty-five 
cents.  In  the  lower  court  judgment  was  ren- 
dered against  him,  and  he  appealed  to  the  Su- 
perior Court.  When  the  case  was  entered  in  the 
Superior  Court,  a  tender  was  made  of  thirty 
cents.  The  case  came  on  for  trial,  and  the  con- 
ductor testified  to  the  facts  stated  above,  and  the 
plaintiff  rested.  Mr.  Welch  then  asked  the  Court 
to  ride  that  there  must  be  a  verdict  for  the  de- 
fendant, as  he  had  tendered  thirty  cents,  which 
was  double  the  fare  that  the  plaintiff  could  re- 
cover, as  the  defendant  was  liable  for  only  one 
fare,  which  was  fifteen  cents  at  the  most,  and 
that  he  was  not  responsible  for  the  other  fares. 
The  Court  so  ruled,  and  a  verdict  was  taken  for 
the  defendant. 

A  man  by  the  name  of  Freeman,  who  was 
employed  in  the  office  by  my  predecessor,  Mr. 
Willard,  had  agreed  to  meet  him  at  the  office  at 


IXDORSING    A    J'ETJTJOX.  185 

8.30  A.  M.,  half  an  hour  before  the  usual  time  of 
opening  it.  Precisely  at  that  hour  there  came 
an  imperative  rap  at  the  door.  I  took  no  notice 
of  it.  In  a  few  moments  it  was  repeated.  I 
said  to  Freeman  that  it  must  be  some  one  who 
ought  to  be  admitted.  Then  Freeman  thouaht 
of  his  agreement  and  hastened  to  open  the  door. 
Mr.  Willard  said :  "  Mr.  Freeman,  you  agreed 
to  meet  me  at  8.30  a.  m.,  sir,  and  now  it  is 
fifteen  minutes  to  nine  ;  I  am  ashamed  of  you." 
"  Are  you  ?  "  replied  Mr.  Freeman  ;  "  that  saves 
me  the  trouble  of  being  ashamed  of  myself." 

A  man  was  being  sentenced  by  Judge  Gushing 
of  the  Police  Court,  for  being  a  common  drunk- 
ard. The  judge  remarked  :  "•  You  ought  to  be 
ashamed  of  yourself ;  you  might  be  a  respectable 
man  if  you  would  n't  go  about  drinking  like  a 
sponge."  The  prisoner  answered :  "Your  honor 
has  a  right  to  sentence  me  and  perhaps  lecture 
me ;  but  you  can't  sentence  me  when  you  say  I 
drink  like  a  sponge,  for  a  sponge  only  drinks 
water." 

"  Indorse  this  petition,"  I  said  to  a  young 
student  who  presented  his  petition  for  admission 
to  the  bar.  "  How  shall  I  do  it  ? "  said  he. 
"  Oh,  simply  say,  Jolin  Doe,  petitioner,"  and  he 
indorsed  it  so. 

"  What  in  the  world  is  this  word,"  said  the 


ISO  UBlTKli    DICTA. 

ju(li»e  to  me  one  day.  "  I  can't  make  it  out." 
'*  ^Vhy,   that  word    is    demand,"  said    I,  "and 

very  plainly  written  for  Mr.   ."     "  Plainly 

written  I  "  said  the  judge ;  "  that  declaration  is 
dennurable  for  its  obscurity ;  why  does  n't  he 
go  to  Egypt,  and  establish  a  hieroglyphic  office  ; 
he  writes  worse  than  Choate,  which  1  thought 
until  now  would  be  impossible." 

In  an  action  for  ill  treatment  of  a  horse, 
which  caused  his  death,  an  Irish  hostler  testified 
that  when  the  horse  came  into  the  stable,  he 
was  in  a  "  cowld  sweat."  "  When  did  he  get 
into  a  hot  one  ?  "  asked  the  counsel.  "  Never, 
your  honor,"  said  the  witness  ;  "  he  died  before 
he  got  out  of  the  cowld  one." 

The  following  was  done  by  a  young  man  who 
had  been  only  a  couple  of  years  at  the  bar. 
He  was  the  youngest  of  a  firm  of  three.  The 
firm    had    an    execution    of    81000    and    costs 

against  the  city  of  Boston.     Mr. presented 

the  execution  to  Mr.  Turner,  the  city  treasurer, 
and  Mr.  Turner  replied  that  he  did  not  know 
him  and  wanted  him  to  get  either  of  the  two 
other  members  to  come  and  discharge  the  execu- 
tion, as  he  knew  both  of  them  well.     Mr.  

said:  "I  am  a  member  of  the  firni."  Mr. 
Turner  said  :  "  May  be  so,  but  I  don't  know 
you,  and  here  's  a  thousand  dollars  or  so  to  pass, 
and   I   don't   want    to    lose   it."     While    Mr. 


A    WIDE-AWAKE    WITNESS.  187 

Turner  was  looking  about,  Mr. disappeared, 

and  in  a  few  moments  a  deputy  sheriff  came  in 
with  the  execution,  and  the  treasurer  had  to 
pay,  not  only  the  thousand  dollars  and  costs, 
but  seventeen  dollars  more  as  officer's  fees. 

In  an  action  for  a  collision  between  one  of 
the  East  Boston  ferry-boats  and  a  sloop,  the 
foUowino-  dialosfue  occurred  between  one  of  the 
learned  counsel  and  a  witness  :  — 

"  You  own  the  sloop  ?  " 

"  I  do,  your  honor." 

"  What  was  her  crew  ?  " 

"Oh,  bedad,  meself  was  her  captain,  and 
another  man  was  her  crew." 

"  When  the  steamboat  struck  you,  what  was 
the  crew  doing  ?  " 

"  Begorra,  your  honor,  he  was  standing  fore- 
ninst  the  bowsprit,  screeching, '  Stameboat  ahoy  ! 
Stameboat  ahoy  I '  and  I  told  him  to  lave  off 
screeching  like  that,  and  to  scram e  '  Murder.'  " 

Somethino;  more  than  a  smile  went  over  the 
court  room,  bench  and  all.  The  counsel  re- 
turned to  the  charge. 

"When  the  steamer  passed  you  after  the 
collision  occurred,  did  she  pass  ahead  of  you  or 
astern?" 

"  Well  now,  upon  me  oath  and  conscience, 
yer  honor,  I  could  n't  say  as  to  that ;  meself  had 


188  OniTEIl    DICTA. 

enough  to  do  to  look  out  for  me  life,  those 
times." 

Counsel  (insinuatingly)  :  "  Well  now,  sir, 
how  old  is  your  sloop  ?  " 

"  Shuie,  sir,  't  is  more  than  meseK  that 
knows." 

"  Well,  about  how  old  is  she  ?  " 

"  Be  me  sowl,  yer  honor,  she  might  be  twenty 
years  jist  about." 

"  She  grows  better,  I  suppose,  as  she  grows 
older,  eh?" 

"  Well  now,  yer  honor,  I  could  n't  say ;  some 
things  does  and  more  things  don't.  I  know 
I  'm  better  these  times,  and  I  hope  yer  honor  is, 
than  I  was  twenty  years  ago." 

Here  the  laugh  got  in  all  around,  and  the 
counsel,  coming  to  the  conclusion  that  Captain 
Muldoon  was  wide  awake,  dropped  the  exami- 
nation, and  the  witness  was  allowed  to  stand 
down. 

Matthew  Wells  Smith  and  Phineas  Ayer 
were  trying  a  case,  each  having  his  client  for  a 
witness,  and  no  other.  Mr.  Callahan  testified ; 
then  Mr.  Flanagan  testified,  and  contradicted 
Mr.  Callahan  on  almost  every  point.  Then  Ayer 
recalled  Callahan  and  said :  "  Callahan,  you 
heard  the  testimony  of  Flanagan?"  "Yes, 
sor."     "  In  consequence  of  what  he  said,  do  you 


A    WRITTEN  PROMISE.  189 

want  to  change  your  testimony  ?  "  "  Faix,  just 
as  you  loike,  sor."  "  You  can  step  down,  sir," 
said  Ayer ;  "  you  are  too  willing."  This  was 
before  the  Supreme  Court  ruled  that  this  ques- 
tion need  not  be  asked  a  witness,  but  that  he 
may  ask  to  change  it  himself. 

P.  Henry  Hutchinson  was  arguing  before  a 
judge  for  damages  for  assault  on  his  client  by 
a  blow  on  his  face.  Said  Hutchinson  :  "  There 
are  some  cases  in  which  the  iron  enters  the  soul, 
and  one  feels  it  more  than  the  blow.  Your 
honor  knows  how  it  is."  Judge  :  "  Fifty  dollars 
and  costs."  This  judge  had  been  assaulted  by 
a  person  who  was  sent  to  jail  for  the  offense. 

Mr.  P.,  wanting  to  plead  the  discharge  of 
his  client  in  insolvency,  asked  John  J.  King, 
who  was  clerk  to  the  master  in  chancery,  to  lend 
him  the  discharge.  King  said  it  was  usual  for 
the  party  to  call  for  it  and  pay  for  it,  P.  said, 
"  I  '11  be  responsible  for  the  fees."  "  Very 
well,"  said  King,  "  as  your  word  is  good,  take 
it."  P.  pleaded  it,  and,  not  paying  for  it.  King 
asked  him  for  the  pay  as  promised.  Said  P., 
"  Have  you  any  written  promise  ?  " 

A  vessel  arrived  from  sea  and  hauled  into  the 
dock,  and  between  daylight  and  evening  the 
captain  went  below  for  supper.  While  eating, 
he  heard  a  splashing  in  the  water  by  the  side  of 


190  OBITER   DICTA. 

Ills  vessel,  and,  comiiii;'  on  deck,  he  found  a  man 
struggling'  in  the  water,  lie  throw  him  a  rope 
and  hauled  him  on  board.  After  wringing  out 
his  clothes  and  getting  composed,  the  man  took 
a  writ  from  his  pocket  and  attached  the  vessel. 
It  was  Deputy  Sheriff  Neale,  who  had  attemj)ted 
to  walk  aboard  on  a  plank,  and  when  halfway 
over,  the  plank  broke  and  let  him  overboard. 

Senator  Jones  of  Nevada  was  once  a  witness, 
and,  while  waiting  for  his  turn  to  testify,  went 
down  into  the  jury-room  with  a  number  of  the 
court  officers,  and  entertained  us  with  stories  of 
General  Grant.  The  best  one  I  remember  is  this : 
General  Grant  w^as  accustomed  to  take  long 
walks,  and  almost  every  day  he  met  a  butcher 
driving  a  horse  to  which  he  took  a  great  fancy. 
After  considerable  negotiation,  he  bought  him, 
took  him  to  his  stable,  had  him  well  groomed, 
and  then  called  Senators  Conkling  and  Jones, 
and  one  or  two  others,  to  look  at  his  new  pur- 
chase. His  hostler  brought  him  out  on  the  stable 
floor,  took  off  his  blanket,  and  General  Grant 
asked  the  senators  how  they  liked  him.  Conk- 
ling shook  his  head.  "  What  is  the  matter,  Mr. 
Senator  ?  "  said  Grant.  Conkling  looked  him  all 
over  again  and  said :  "  What  did  you  give  for 
him,  Mr.  President?  "  "  Four  hundred  dollars," 
said  the  general.  Said  Conkling  :  "  I  VI  rather 
have  the  four  hundred  dollars  than  the  horse." 


ANECDOTE    OF    GENERAL    GRANT.  101 

Grant,  puffing  out  a  cloud  of  smoke,  coolly 
remarked  :  "  That 's  what  the  butcher  thought ; 
put  him  back  into  the  stall,  John." 

George  Sennott  was  in  the  clerk's  office  one 
day  when  his  office  boy  came  running  in,  and 
said  to  Sennott :  "  There  's  a  man  wants  to  see 
you  at  the  office."  "  Ask  him  what  he  wants," 
said  Sennott,  "  and  if  he  won't  tell  you,  say  I 
can't  see  him  unless  he  leaves  ten  dollars." 
"  Oh,"  said  the  boy,  "  he  is  n't  an  Irishman." 

A  witness  testified  before  Judge  Gushing  in 
the  Municipal  Court  that  the  opposing  party 
told  him  he  should  n't  have  his  property  till  he 
got  it  at  the  tail  end  of  the  law ;  "  and  so,"  said 
the  witness,  "  I  came  immediately  before  your 
honor." 

There  was  a  jury  out  some  time,  one  of  the 
members  of  which  was  Daniel  Deshon.  Chief 
Justice  Nelson  said  to  the  jury :  "  I  learn, 
gentlemen,  that  you  cannot  agi'ee  ;  what  is  the 
trouble  ?  "  "  No  trouble,  yoiir  honor,  except 
with  Deshon,  here."  And  as  the  result  proved 
Deshon  was  the  one  who  was  right. 

Under  the  old  law,  witnesses  were  required  to 
take  the  oath  differently  according  to  their 
respective  beliefs  ;  some  on  the  Evangelists,  some 
on  the  Pentateuch,  and  so  on.  Mr.  Morse  called 
a  number  of  witnesses,  and  havhig  only  a  small 


192  OlilTEIi    DICTA. 

co]>y  of  tlie  Evangelists  to  swear  tlioni  upon,  I 
told  Mr.  Morse  that  the  witnesses  eould  n't  all 
take  hold  of  the  book  at  the  same  time.  Morse 
(^sotto  voce)  :  "  Let  one  take  hold  of  the  book, 
and  the  next  one  take  hold  of  him,  and  so  on, 
and  let  it  go  throngh  them  like  an  electric 
shock." 

Two  boys  were  brought  up  to  be  swoi'n.  The 
first  was  thirteen  years  of  age.  The  judge  put 
to  them  the  following-  questions  :  "  How  old  are 
you  ?  "  "  Thirteen."  "  Do  you  know  the  com- 
mandments ?  "  "  No."  "  Do  you  go  to  Sunday- 
school?  "  "  No."  "  Did  you  hear  the  clerk  swear 
the  others  to  tell  the  truth  ?  "  "  Yes."  "  What 
was  it  for  ?  "  "  To  tell  the  truth."  "  Suppose 
you  don't  tell  the  truth  ?  "     "  I  don't  know." 

The  second  boy  to  the  first  question  answered 
"  Ten  ;  "  to  the  second,  "  Yes,  sir  ;  "  to  the 
third,  "  Yes,  sir  ;  "  to  the  fourth,  "  Yes,  sir  ;  "  to 
the  fifth,  "To  tell  the  truth;"  to  the  sixth, 
"  God  will  be  offended."  Counsel :  "  Who  told 
you  that  ?  "  "  Nobody  ;  I  learned  it  at  Sunday- 
school." 

A  third  boy  was  brought  up,  who  said  that 
he  was  eight  years  old,  and  answered  the  first 
five  questions  in  the  affirmative.  To  the  sixth, 
"  Suppose  you  don't  tell  the  truth,"  he  answered, 
'•  Then  he  won't  win  his  case." 

William  L.  Burt,  once  postmaster  of  Boston, 


RELATIVE   SOBRIETY.  193 

in  closing  his  argument  after  Mr.  S.  C.  Maine 
had  closed  on  the  other  side,  said  :  "  Gentlemen 
of  the  jury,  the  Lord  made  me  some  time  after 
that  gentleman,  but  after  He  got  his  hand  in." 

Samuel  D.  Parker  told  me  that  when  party 
spirit  ran  high  in  this  State  as  to  masonry  and 
anti-masonry,  Leverett  Saltonstall,  who  was  a 
candidate  for  Congress,  was  asked  by  a  gentle- 
man his  opinion  of  masonry,  and  whether  he 
did  n't  consider  it  silly.  "  Yes,"  said  Mr.  S. ; 
"  there  is  only  one  thing  sillier  —  anti-masonry." 

Mr.  E..,  formerly  attorney-general,  who  was 
rather  convivial  at  the  time  I  speak  of,  shortly 
after  he  was  elected  to  Congress  thought  he 
would  go  West,  and  get  a  little  acquainted 
with  the  people.  He  found  some  other  Con- 
gressmen-elect where  he  went  and  they  traveled 
for  about  a  week.  As  he  started  for  home  the 
most  familiar  of  his  associates  asked  one  of  the 
others  :     "  You  've     always    called   your   friend 

Bob  ;    what 's  his  surname  ?  "     "  R ,"  said 

the  other.  "  And  elected  Congressman  from 
Massachusetts?"  "Yes."  "What's  his  poli- 
tics?" "Republican."  "  H— 1,  he  drinks 
like  a  Democrat." 

A  witness  who  was  asked  what  was  his  con- 
dition that  morning  replied :  "  Sober  as  a 
judge." 

Walter  H.  Judson  was  once  talking  with  a 


194  OBITER    DICTA. 

dentist  who  asked  him  where  lawyers  would 
go  when  they  died.  "I  don't  know,"  said  Jud- 
son ;  "  but  I  know  where  dentists  ouf>ht  to 
go."  "Where?"  said  the  doctor.  "Where 
there  's  '  gnashing  of  teeth,'  "  said  Judson. 

Mr.  Freeman,  who  was  employed  in  the 
office  of  the  Superior  Court,  was  copying  the 
list  of  cases  handed  in  by  the  lawyers,  to  be  en- 
tered on  the  new  docket.  Many  of  them  were 
badly  written,  and  he  applied  to  me  frequently 
to  learn  the  names  of  parties.  But  at  last,  his 
patience  about  gone,  he  said  to  me  :  "  You  would 

be  a  d-^ good   fellow  to   go  to   Egyj^t,  and 

read  the  hieroglyphics.  If  I  was  a  merchant 
and  they  sent  me  such  writing,  I  would  send  it 
back  and  ask  them  if  they  meant  to  insult  me ; 
and  as  for  that  T.,  he  's  my  hete  noire,  and  if  I 
catch  him  on  the  Common,  I  '11  lick  him."  I 
told  Mr.  T.  of  it,  and  he  repeated  the  story  in 
court  to  the  members  of  the  bar,  to  their  great 
amusement. 

When  I  first  entered  the  office  there  was  a 
large  stable  on  Endicott  Street  called  the  "  Mas- 
sachusetts Stable,"  and  it  was  the  only  large  one 
then  in  Boston  where  horses  were  broug-ht  in 
from  the  country  for  sale.  James  L.  English, 
David  S.  Greenough,  and  Edward  D.  Sohier, 
who  at  that  time  wore  the  drab  English  cloth 


LEGLE   JOCKEYS.  195 

coat,  were  accustomed  to  go  every  spring  to  this 
stable  to  look  over  horses.  On  a  certain  spring 
day,  they  went  down  as  usual,  and  a  new  hostler 
was  there.  As  they  were  going  out,  the  new 
hostler  said  to  one  of  his  companions,  "  Who 's 
them,  John  ?  " 

"  Ah !  bless  your  soul,  don't  ye  know  them  ? 
them  's  the  legie  jockeys." 


VI. 

OBITER   DICTA.  —  PART   H. 

Mr.  R.,  in  addressing  a  jury,  in  a  case  where 
the  owner  of  a  cow  sued  the  pound-keeper  for 
damages  to  his  cow,  which  was  hurt  while  in 
pound,  said  :  "  Gentlemen,  the  pound  should  be 
a  safe  asylum,  not  only  for  the  roaring  bull,  but 
for  the  gentle  heifer." 

Soon  after  the  death  of  my  predecessor  Mr. 
Joseph  Willard,  Richard  F.  Fuller,  a  prac- 
ticing lawyer,  who  had  probably  not  heard  of  his 
death,  brought  a  suit  in  which  the  writ  was 
signed  by  Joseph  Willard.  After  I  was  ap- 
pointed by  the  Court  to  fill  the  vacancy  till  the 
next  election,  a  motion  having  been  made  to 
dismiss  the  writ,  Mr.  Fuller  asked  leave  to 
amend  by  striking  out  Joseph  Willard,  and  in- 
serting my  name,  Joseph  A.  Willard,  which 
was  refused.  Then  Mr.  Fuller  asked  to  amend 
by  inserting  "A."  between  Joseph  and  Wil- 
lard ;  the  Court  smiled,  and  refused  that  also. 
Then  he  offered  to  paste  my  name  over  that  of 
Joseph  Willard,  which  was  likewise  refused,  and 
the  case  dismissed. ^ 

■^  To  the  lay  mind  this  is  said  to  be  pointless ;  therefore  I 


A   LEFT   AXGLE.  197 

A  lawyer  practicing  at  the  bar  brought  ine 
a  deed  to  copy  in  which  was  the  following : 
"  Beginning  at  a  certain  point  and  running 
forty  rods  to  a  stone,  then  turning  at  a  right 
angle  and  running  forty  rods  to  a  post,  then 
turning  at  a  left  angle,"  etc. 

The  same  lawyer  was  trying  a  case  before 
Judge  Lord  in  which  there  were  two  witnesses 
of  the  same  name.  One  of  them  belonged  in 
Boston,  the  other  in  France.  In  examining 
one,  the  answers  were  not  according  to  his  ex- 
pectations, he  having  evidently  mistaken  the 
witness  for  another  person.  So  to  avoid  confu- 
sion he  asked  him :  "  Where  do  you  live  ?  " 
The  witness  answered  :  "  In  Boston."  "  Oh," 
said  the  counsel,  "  I  thought  you  was  the  Peer 
[Pierre]  Dubois  who  lived  in  Bordux  [Bor- 
deaux]." 

The  same  counsel  in  commenting  on  the  tes- 
timony of  a  witness,  said :  "  Gentlemen  of  the 
jury,  I  ask  you  not  to  believe  a  word  he  has 
said  ;  look  at  him,  where  he  comes  from,  the 
very  purloins  of  North  Street." 

The  same  counsel,  trying  a  case  before  Chief 

state  that  the  signature  of  the  clerk  is  the  foundation  of  the 
writ,  and  the  writ  became  at  the  death  of  Joseph  Willard,  Esq., 
notliing  but  a  blank  piece  of  paper,  being'  issued  after  liis 
death,  and  this  shows  the  devices  of  a  lawyer  to  maintain  his 
suit.     A  lawyer  will  appreciate  it  without  this  explanation. 


198  VlUTElt    DICTA. 

.lustico  Rrimham,  insisted  upon  asking'  questions 
wliicli  the    Cliief    .Iiistice  had   r('})eatedly  ruled 

out.     The  Chief  Justice  said,  "Mr. ,  you 

don't  seem   to   take   any  notice  of  my  ruling." 
"■  I  ask  your  honor's  apology,"  was  the  re])ly. 

An  action  of  contract  was  tried  in  the  Court 
of  Common  l^leas,  before  Mr.  Justice  Hoar. 
Mr.  Edward  Y.  was  for  defendant,  and  Mr. 
M.  S.  C.  for  plaintiff,  the  defense  minority. 
After  the  plaintiff's  case  was  proved,  the  de- 
fendant's older  brother  took  the  stand  and 
testified  as  to  the  age  of  the  defendant.  His 
testimony,  if  believed,  proved  the  defendant  to 
have  been  a  minor  at  the  time  the  debt  was 
contracted. 

Mr.  C.  was  often  somewhat  under  the  in- 
fluence —  it  is  difficult  to  say  of  what  —  and,  as 
counsel  then  sat  while  examining  witnesses, 
C.  was  seated  with  one  leg  over  the  other, 
swinging  it  to  and  fro,  and  proceeded  to  cross- 
examine  in  this  manner :  — 

C.  :  "  Witness,  where  were  you  when  your 
br'er  was  born  ?  " 

Witness :  "  I  was  about  the  farm." 

C.  :  "  But  where  were  you  ?  " 

W^itness :  "  I  might  have  been  hoeing  pota- 
toes or  corn." 

C.  :  "  Yes,  sir,  I  know  you  might  have  been 


AN  INNOCENT   OLD   LADY.  199 

doing  a  good  many  tilings,  but  ttihere  were 
you?" 

Judge  Hoarf  "  Mr.  C,  what  is  the  object  of 
this  minute  examination?" 

C,  rising  and  hokiing  on  to  the  rail  in  front 
of  the  clerk's  desk  to  steady  himself :  "  May  it 
please  the  Court,  I  wish  to  as'tain  whetli'  th' 
witness  was  merely  'bout  there,  or  wheth'  he 
was  'njoying  the  festivties  o'  th'  'casion." 

Judge  Hoar :  "  You  can't  ask  that." 

C.  steadied  himself  for  fully  a  minute,  looked 
the  judge  straight  in  the  face,  and  without  say- 
ing a  word  more  took  his  law  books  imder  both 
arms  and  staggered  out  of  the  court  room.  I 
never  saw  him  afterwards. 


A  case  was  on  trial  in  which  several  plain- 
tiffs were  suing  the  Allan  line  of  steamships 
for  furnishing  bad  food,  dirty  berths,  and  gruel 
which  made  them  sick.  For  the  defense  a  num- 
ber of  respectable  witnesses  were  called,  who 
said  that  they  had  plenty  of  good  bread,  tea, 
coffee,  etc.  An  elderly  lady  said  she  had  her 
grandson  with  her,  ten  years  old,  and  that  they 
had  "  a  plenty  of  good  bread,  tea,  coffee,  and 
meat." 

"  Did  you  eat  the  gruel  ?  " 

"  Yes." 

"  Did  the  boy  also  ?  " 


200  on  ITER    DICTA. 

"  Yes." 

"  Was  it  good  ?  " 

"Yes."  * 

"  TIacI  yoii  enough  ?  " 

"  Quite  sufficient,  and  I  'm  going  back  in  the 
same  ship  some  da}^" 

This  testimony  was  so  strong  that  the  plain- 
tiff's counsel  thought  he  suspected  something,  so 
he  cross-examined  quite  severely,  and  the  more  he 
interrogated  the  stronger  her  evidence  became. 

"  You  are  going  back  some  day  ?  " 

"Yes." 

"By  this  line?" 

"Yes." 

"The  Allan  Company  are  going  to  give  you 
a  free  passage  ?  "  (tentatively). 

With  the  utmost  naivete.,  the  old  lady  ex- 
claimed very  innocently,  "  Are  they  ?  " 

The  tone  and  inflection  cannot  be  given,  but 
it  floored  the  plaintiff's  counsel,  and  he  cross- 
examined  no  more. 

In  closing  an  argument  before  a  jury,  and 
commenting  on  the  testimony  of  a  witness,  a 
member  of  the  bar  once  said :  "  Such  testimony 
was  never  heard,  posterior,  anterior,  or  before." 

The  same  gentleman,  in  introducing  Mr. 
John  E.  Fitzgerald  to  an  audience,  said : 
"  Ladies  and  gentlemen,  allow  me  to  introduce 


FIXING  A  DATE.  201 

to  you  the  celebrated  young  orator,  John  E. 
Fitzgerahl  of  Boston,  whose  voice  has  so  often 
resounded  through  the  archives  of  Faneuil 
Halh" 

At  the  general  calling  of  the  docket  at  the 
April  term  of  1889,  number  one,  an  action  which 
had  been  on  the  docket  for  thirty-one  years 
was  dismissed. 

Some  strange  scenes  occur  on  these  occasions. 

The  clei'k  caUed  a  case, vs. ,  K.  for 

the  defendant.  Mr.  K. :  "  I  don't  know  any- 
thins:  about  that."  The  clerk  :  "  Your  name  is 
on  the  docket."  Mr.  K. :  "  Some  mistake." 
The  clerk  got  the  writ  and  papers,  and  read 
from  the  files  :  "  Enter  my  appearance  for  de- 
fendant. K."  —  in  his  own  handwriting.  (Fun 
among  the  bar,  in  which  K.  took  no  part.) 

In  a  trial  for  damages  against  the  West  End 
Railroad,  a  witness,  on  his  examination  in  chief, 
testified  that  it  happened  on  a  certain  day.  On 
the  cross-examination,  the  following  dialogue 
took  place :  "  Are  you  sure  when  this  acci- 
dent occurred?  "  "  Yes."  "  When?  "  "  In  the 
spring."  "  Might  it  have  been  in  April  ?  " 
"  Yes."  "  In  June  ?  "  "  Yes."  "  In  August  ?  " 
"  August  ain't  spring."  "  Should  you  be  sur- 
prised if  it  was  a  year  ago  ?  "  "  No."  "  Two 
years?"    "No."    "Five years?"   "No."   "Sev- 


202  OBITER   DICTA. 

onteen  years?"  "No."  "And  believe  it?" 
"  No  ;  1  might  not  be  surprised,  but  I  don't  be- 
lieve it."  "When  was  it?"  "In  March." 
"Whioh  March?  first,  second,  or  third?" 
"  One  of  'em."  "  Which  ?  "  "  First  March." 
And  the  fact  was  so. 

An  action  was  brought  by  the  heirs  of  a  de- 
ceased woman  to  recover  -f  6000  which  the  de- 
fendant claimed  as  a  gift  of  the  deceased,  who 
was  his  sister.  The  defendant's  counsel  in  argu- 
ment said  his  client  claimed  it  under  the  motto 
of  the  Municipal  Court  of  the  city  of  Boston, 
to  wit :  "  Suwn  cuique.''  The  plaintiff's  coun- 
sel, in  reply,  said  his  clients  claimed  it  under 
the  motto  of  the  Probate  Court,  to  wit,  "  Deo 
animam  hmredihus  hona^ 

In  1874,  a  leading  member  of  the  bar  brought 
into  the  office  a  petition,  stating  in  substance 
that  a  widow  owned  a  policy  of  insurance  on  the 
life  of  her  late  husband,  for  15000,  payable  to 
her  at  his  death ;  that  after  the  proof  of  his 
death  she  was  informed  by  the  company  that  it 
would  be    necessary  to   get  the  receij^t  of    the 

executor ;   that  the  petitioner  went   to ,  a 

lawyer,  and  gave  him  a  power  of  attorney,  au- 
thorizing him  to  get  the  money ;  which  power 
was  shortly  afterward,  at  her  request,  returned 
to  her.    She  also  requested  the  attorney  to  deliver 


EXTORTIONATE    CHARGES.  203 

up  the  policy  to  her,  whieli  he  refused  ;  that  the 
attorney  paid  her  |100,  and  tohl  her  she  could 
have  more  when  she  wished  it ;  that  shortly  after, 
she  went  to  the  lawyer,  who  presented  her  with 
a  bill  of  $703,  —  1269  for  advice  and  services, 
and  tf 434  for  commission  and  collection.  Con- 
sidering- this  extortionate,  she  went  to  the  mem- 
ber of  the  bar  who  presented  this  petition  ;  the 
petition  closed  by  stating-  that  if  it  shoidd  appear 
that  the  party  had  been  guilty  of  this  alleged 
misconduct,  he  be  removed  from  the  bar.  Know- 
ing the  respondent  somewhat,  and  thinking 
well  of  him,  I  asked  the  counsel  who  brought 
in  the  petition  to  let  me  have  it,  and  see  if  I 
could  n't  arrange  it  without  bringing  it  to  the 
attention  of  the  Court,  to  which  he  assented. 
The  respondent,  being  sent  for,  came  in  and  jus- 
tified. I  said  to  him  that  if  that  was  all  he  had 
to  say,  the  petition  might  as  well  be  entered. 
He  asked  me  what  I  thought  he  ought  to  do. 
I  told  him  it  was  not  for  me  to  advise  him, 
but  if  I  should  give  him  any  advice,  it  would 
be  to  cut  clown  his  bill  certainly  one  half.  He 
said  he  should  not  do  that.  I  then  asked  him 
if  he  would  refer  it  to  such  person  as  I  might 
appoint.  He  said  he  would.  I  told  him  I  would 
confer  with  the  other  side,  which  I  did,  and  he 

agreed  to  do  the  same.    I  then  selected  Mr. , 

who  heard  the  parties,  and  reduced  the  charges 
to  about  $300. 


204  OBITER    DICTA. 

Some  years  after,  in  a  case  in  which  an  ac- 
quaintance of  mine  was  one  of  the  parties,  wouUl 
not  the  following,  by  the  same  attorney,  be  con- 
sidered an  act  of  sharp  practice  ?  lie  recov- 
ered a  judgment  against  a  defendant  who  was 
defaulted  by  accident,  and  got  an  execution 
against  him.  The  defendant  came  to  me,  and 
said  it  was  a  mistake,  and  determined  to  peti- 
tion for  review,  and  did  so.  The  Court  ordered 
the  execution  superseded,  and  a  notice  to  be 
issued  to  the  plaintiff.  While  the  proceedings 
were  going  on,  defendant's  counsel  wrote  a  letter 
to  this  attorney  stating  what  was  being  done, 
and  asked  him,  as  a  matter  of  courtesy,  to  hold 
the  execution  for  a  short  time  until  he  could  get 
out  the  supersedeas^  stating  that  the  defendant 
was  financially  good,  and  liad  plenty  of  property 
to  levy  on.  This  letter  was  sent  by  the  defend- 
ant, who,  on  arriving  in  the  attorney's  office  with 
it,  found  there  an  officer.  The  attorney  read  the 
letter,  and  turning  to  the  officer  said  :  "  Mr.  Offi- 
cer, levy  this  execution  and  collect  immediately." 

In  an  action  against  the  Boston  and  Maine 
Railroad,  to  recover  damages  for  a  broken  arm, 
the  cross-examination  of  a  physician  was  as  fol- 
lows :  "  How  much  is  your  bill  ?  "  "  Two  hun- 
dred dollars."  "  How  much  a  visit?"  "Two 
dollars,  at  his    house."     "  How  many  visits  ?  " 


A   PRUDENT  PHYSICIAN.  205 

"  One  hundred  and  twenty."  "  How  many  at 
your  house  ?  "  "  Forty."  "  How  much  at  your 
house?"  "One  dollar."  "  That  is  $240,  and 
$40,  $280  ;  do  you  often  get  up  as  high  as  that 
for  a  broken  arm  ?  Have  you  sent  your  bill  ?  " 
"  No."  "  Are  you  waiting  to  see  how  this  case 
comes  out  ?  "     "  Yes." 

In  an  action  of  contract  to  recover  $300,  the 
parties  were  all  Hebrews.  Plaintiff's  counsel, 
examining   defendant    B. :    "  Mr.  B.,  was  Mr. 

in  your  employ  ?  "    "  No,  sir."     "  Never  ?  " 

"  No,  sir."  "  Did  n't  he  work  for  you  for  a 
year  ? "  "  No,  sir  ;  he  loaf  about  the  shop." 
"  Did  you  write  that  letter  ?  "  (showing  it.) 
"Yes,  sir."     Counsel  read  the  letter,  in  which 

it  appeared  that  the  witness  recommended 

as  a  good  man  who  had  been  in  his  employ  a 
year.  "  Now,  sir,  did  you  write  that  letter  ?  " 
"  No,  sir."  "  Did  n't  you  say  a  minute  ago  that 
you  did  ?  "     "I  no  compose  him,  I  coj)y  him." 

I  called  a  case  and  said,  Mr. and  Mr. 

Sanford.  Sanford :  "  Wio  am  I  for  ?  "  I :  "  I 
think  you  ought  to  know  your  own  client." 
Sanford :  "  I  move  for  a  default."  I :  "  You 
are  for  defendant."  Sanford :  "  Ah,  then  1 
move  for  dismissal." 

A  ship  lien  case  was  called.  No  response.  I 
called,  "  Dismissed."     Some  one  arose.    "Please 


206  OBITER   DICTA. 

the  Court,  I  should  like  to  have  that  case  stand." 
The  Court :  "  How  long  since  anything  has  been 
done,  Mr.  Clerk  ?  "  Clerk  :  "  About  three  years, 
your  honor."  Counsel :  "  The  ship  has  been 
away,  your  honor,  and  if  she  returns,  we  will 
enforce  our  lien."  Court:  "  What  says  the  other 
side?"  Counsel:  "  Oh,  we  control  both  sides, 
your  honor."  Court :  "  Oh,  well,  if  that  is  the 
case,  it  may  stand." 

Gage  wished  a  case  continued,  as  one  of  the 
parties  was  guilty  of  embezzlement,  forgery, 
perjury,  or  something  of  the  kind,  and  he  wished 
to  ascertain  which  of  these  before  he  went  to 
trial. 

"  Is  that  your  son's  signature  ?  "  "I  don't 
know."  "  How  long  have  you  known  him  ?  " 
"  About  twenty  years."  "  Did  you  ever  see 
him  write  his  name?  "  "  Yes,  sir."  "  Does  this 
look  like  his  signature  ? "  "I  don't  know." 
"What  is  your  impression?"  "Haven't  got 
any." 

To  son  :  "  What  is  j^our  business  ?  "  "  Res- 
taurant." "  You  ran  one  for  yourself  in  1885  ?  " 
"Yes,  sir."  "Then  for  L.  M.  Wyman?" 
"  Yes,  sir."  "  What  are  j^ou  doing  now  ?  " 
"  Managing  a  restaurant."  "  Who  for  ?  "  "  L. 
M.  Wyman."  "  Who  is  he  ?  "  "  He  is  L.  M. 
Wyman."    "Your  aunt?"    "No."    "Cousin?" 


GOOD    GROUND    FOR    DIVORCE.  207 

"No."  "Uncle?"  "No."  "  Any  relation  ?  " 
"  Don't  know."  "  Then  you  don't  know  your 
relations  ?  "     "  No." 

A  breach  of  promise  case  was  on  trial,  and 
the  defendant's  counsel  had  his  photograph,  and 
asked  the  plaintiff's  counsel  if  he  wished  to  see 
it.  He  said :  "  Yes."  The  judge  said  :  "  Is 
it  a  part  of  the  case  for  plaintiff  to  show  that 
she  lost  a  handsome  man?"  "When  did  you 
first  like  him  ?  "  "I  always  liked  him."  "  But 
the  second  time  he  came  your  affections  sud- 
denly sprang  into  an  ardent  and  vigorous 
growth  ?  "     "  Yes." 

A  member  of  the  bar  was  asked  if  epilepsy 
was  n't  a  good  ground  for  divorce.  "  Epilepsy  ? 
No  ;  why  should  it  be  ?  "  "  Why,  it 's  lack  of 
support,  ain't  it  ?  " 

William  Gaston  was  governor  of  Massachu- 
setts. His  son,  William  A.,  was  afterwards 
colonel  on  Governor  Russell's  staff.  E.  Rock- 
wood  Hoar  was  Judge  of  the  Court  of  Common 
Pleas  and  afterwards  of  the  Supreme  Judicial 
Court.  His  son,  Sherman  Hoar,  was  a  member 
of  Congress.  Samuel  Hoar,  another  son  of  the 
judge,  was  trying  a  case  ojDposed  to  young  Mr. 
Gaston  when  the  following  occurred  :  — 


208  oil  ITER    DICTA. 

INIv.  Samuel  Hoar  to  witness :  "  Have  you 
talked  over  this  matter  ?  " 

Witness  :  "  Yes,  sir." 

Mr.  Hoar :  "  Who  with  ?  Governor  Gaston 
or  Colonel  Gaston  ?  " 

Witness:  "Both." 

When  young-  Mr.  Gaston  was  examining  a 
hostile  witness  he  asked :  "  Have  you  talked 
over  this  matter?  " 

Witness:   "Yes." 

Mr.  Gaston:  "Who with?  Judge  Hoar, mem- 
ber   of    Congress    Hoar,    or "  — 

Mr.  Samuel  Hoar  (arising),  "  Plain  practi- 
tioner of  law." 

An  action  was  brought  to  recover  ilO,000 
damages  for  carelessly  dropping  a  bale  of  hay 
from  a  loft,  ten  or  fifteen  feet  from  the  floor, 
whereby  plaintiff  was  permanently  injured.  De- 
fendant answered  as  to  the  merits,  and  in  addi- 
tion pleaded  a  release  signed  by  the  plaintiff,  in 
the  sum  of  $500,  from  all  claims  against  the 
defendant.  Plaintiff  replied  that  he  was  igno- 
rant of  what  he  signed,  and  if  he  signed  it  he 
must  have  been  intoxicated  at  the  time.  Evi- 
dence was  put  in  as  to  the  merits  of  the  case, 
and  also  as  to  the  release.  As  the  defendant's 
counsel  was  about  to  argue  the  case,  he  handed 
to  the  Court  prayers  for  instructions  to  the  jury. 


^.V   ACT  1  ox   FUR    DAMAGES.  209 

The  judge  looked  them  over  and  handed  them 
to  the  plaintiff's  counsel.  He  looked  them  over 
hastily  and  was  about  to  hand  them  back  to  the 
Court  when  he  thought  he  would  examine  them 
a  second  time ;  he  then  found  tliat  the  last 
prayer  requested  the  Court  to  rule  that  the 
plaintiff  could  not  recover,  as  he  could  not  keep 
the  $500  and  proceed  with  the  trial.  Having 
read  that,  plaintiff  arose,  and  taking  a  five  hun- 
dred dollar  bill  from  his  pocket  offered  it  to 
the  defendant's  counsel,  who  remarked  that  he 
thought  it  too  late.  Plaintiff's  counsel  then  read 
to  the  Court  from  112  and  145  Massachusetts, 
that  it  was  within  reasonable  time,  even  while 
defendant  was  arguing.  Whereupon  plaintiff 
tendered  the  money  again  in  open .  court,  which 
defendant  neither  accepted  nor  refused,  but  pro- 
ceeded with  his  argument.  The  plaintiff  then 
argued  his  case,  and  the  jury  returned  a  verdict 
of  $2500  for  the  plaintiff,  the  defendant  forth- 
with filing  a  motion  for  a  new  trial. 

An  action  was  brought  against  the  city  of 
Boston  for  want  of  a  railing  on  a  narrow  streefe 
on  each  side  of  which  was  water.  A  horse  with 
a  wagon  attached  had  backed  over  the  bank  into 
the  water,  throwing  some  of  the  occupants  into 
the  mud  and  damaging  their  dresses.  A  wit- 
ness testified  that  he  cut  the  traces  and  breech- 
ing, got  the  horse  out,  took  a  stick,  and,  to  use 


L'lO  OBITER   DICTA. 

his  own  words,  "  Give  it  to  liini,  got  a  meal- 
bag  unci  put  it  on  his  back,  and  trotted  him 
home  as  fast  as  he  could."  Counsel:  "Why 
did  you  whip  him,  and  trot  liini  fast?"  Wit- 
ness :  "  I  was  afraid  he  would  drop  if  he  was  n't 
kept  goin'." 

In  a  case  in  which  Harvard  College  was  a 
party,  N.  St.  John  Green  was  junior  counsel 
with  Mr.  Butler ;  and  E.  R.  Hoar  was  for  the 
College.  Mr.  Hoar  asked  Green  :  "  How  is  it 
that  Butler  knew  the  locations  so  well  about 
Cambridge  ?  "  Green :  "  I  went  up  to  Lowell 
Sunday,  and  told  him  all  about  them."  (Green 
was  a  native  of  Cambridge.)  Mr.  Hoar: 
"  Was  that  fair,  Mr.  Green  ?  Was  not  Harvard 
your  Alma  Mater  ?  "    "  Yes,"  said  Green,  "  but 

a   d d   cruel  one."      Green  was  rusticated 

while  there. 

During  the  trial  of  a  case  brought  against  the 
master  of  a  vessel  for  not  providing  anti-scor- 
butics, Mr.  Mackie,  counsel  for  the  plaintiff,  in 
addressing  the  jury,  said  that  it  was  in  evidence 
that  scurvy  was  not  now  (1850)  known  in  the 
merchant  service  or  navy.  A  juror  spoke  up, 
saying :  "  I  want  you  to  know  that  I  am  a 
religious  man,  and  you  must  speak  the  truth.  I 
have  been  ashore  two  months  and  a  half,  and  I 
have  the  scurvy  in  my  legs  now." 

In  a  case  against  the  Boston  and  Albany  Eail- 


IRISH   STEW.  211 

road,  Governor  Long,  appearing  for  the  plaintiff, 
after  his  argument  handed  a  number  of  prayers 
for  instructions.  Judge :  "  These  prayers  seem 
to  be  a  repetition  of  your  argument  to  the  jury." 
Governor  Long :  "  I  don't  think  so,  your  honor." 
Judge  :  "  I  do."  Governor  Long  :  "  A  differ- 
ence of  opinion." 

In  the  case  of  vs.  the  Allan  Steamship 

Company,  the  following  occurred :  ''  You  said 
there  was  a  person  very  sick?"  "Yes,  sir." 
"Who  was  it?"  "A  woman."  "Some  one 
you  had  known  in  Galway?"  "Yes,  sir." 
"  Who  was  she  ?  "     "  My  wife." 

A  wag  named  Holden,  whom  I  knew  in  Cam- 
bridge, was  met  by  a  man  who  asked  him : 
"  Can  you  tell  me  where  the  Probate  Court  is 
held?"  Holden  replied:  "You  should  have 
said,  '  Can  you  tell  me  where  the  Probate 
Court  is  Holden?'" 

A  tailor  w^as  appointed  a  constable,  and  went 
to  the  book  of  forms  and  made  a  verhatim  copy  : 
"  I  this  day  attach,  etc.,  etc.,  and  I  give  him  a 
summons  in  hand  (or  I  arrested  him  and  held 
him  to  bail,  as  the  case  may  be)." 

In  the  case  against  the  Allan  Steamship  Com- 
pany. "  What  did  you  have  to  eat  ?  "  "  Irish 
stew."  "Who  called  it  Irish  stew?"  "The 
s^eicard." 


'2\'J  OlilTKH    DICTA. 

"  What  did  you  do  when  at  home  ?  "  "  Fish- 
ing and  weeding."  "  Did  you  ever  go  to  sea?" 
"  Yes,  sea  all  the  time."  "  Did  you  go  to  sea 
to  weed?"     "Yes."    "Seaweed?"    "Yes." 

Many  lawyers  after  the  evidence  is  in  are  in 
the  habit  of  handing  to  the  judge  a  number  of 
written  prayers  for  instruction  to  the  jury.  In 
some   simple   cases   it   was   very   annoying    to 

Judge  .  and  finally  he  said  to  two  young 

men,  both  of  whom  had  handed  him  a  long  list 
of  prayers :  "  You  can  keep  on  handing  me 
these  prayers  for  instructions  if  you  choose,  but 
if  I  should  give  these  instructions  to  tlie  jury 
which  you  ask  for,  your  verdict  wouldn't  be 
worth  anything." 

In  quite  a  simple  case,  Thomas  E.  Barry 
handed  to  the  Court  some  written  prayers  for 
instructions.  Judge  :  "  It  has  been  the  practice 
for  some  years  in  every  simple  case  to  hand  the 
Court  prayers  for  instructions  ;  I  think  they  are 
better  honored  in  the  breach  than  in  the  obser- 
vance." Then  W.  H.  H.  Andrews,  the  oppos- 
ing counsel,  handed  in  a  number  more.  This 
broke  his  heart.  Judge :  "  I  will  let  your 
requests  lie  on  my  desk,  and  after  you  have 
argued,  proceed  to  charge  the  jury." 

A  case  was  on  trial  in  which  plaintiff  claimed 
damages  for  being  run  into  and  having  his  back 


DEMONSTKATIVE   EVIDKXCK.  213 

broken.  The  defendant  admitted  the  injury, 
but  denied  liability.  The  plaintiff's  little  boy, 
nine  years  of  age,  who  sued  by  his  prochein  ami, 
was  brought  into  court  lying  on  his  belly  on  a 
small  frame  which  was  placed  on  a  table.  He 
rested  his  breast  and  shoulders  on  his  elbows, 
having  no  control  of,  and  no  feeling  in,  any 
portion  of  his  body,  below  his  shoulder  blades, 
and  the  physicians  testified  that  not  only  were 
his  vertebrae  broken,  but  that  the  spinal  cord 
was  severed.  He  was  a  bright  colored  boy, 
and  could  not,  nor  probably  did  he,  realize  his 
situation.  He  laughed  and  played  with  some 
toys  that  he  had  before  him.  One  of  the  wit- 
nesses for  plaintiff  testified  that  an  agent  or 
detective  of  the  West  End  Road  induced  him 
to  go  to  the  office  of  the  West  End  Road,  and 
stay  there,  telling  him  that  he  (the  detective) 
would  make  it  all  right,  but  that  he  became 
tired  of  waiting  and  went  and  told  plain- 
tiffs father.  On  cross-examining  the  wit- 
ness, Dickinson,  attorney  for  the  defendant, 
prodded  him  so  that  he  provoked  him.  Dickin- 
son asked  him  to  come  off  the  witness  stand,  to 
go  into  the  room,  to  stand  up  alongside  of  him 
(Dickinson),  and  to  push  him  around  the  way  in 
which  the  boy  was  knocked.  Witness  did  so, 
and  gave  Dickinson  such  a  hard  push  that  he 
was  whirled  almost  into  the  middle  of  the  room, 


LM4  OBITER    DICTA. 

whereupon  the  witness  retired  to  the  stand. 
AVhen  Dickinson  recovered,  and  as  all  were 
laughing,  he  exclaimed,  "  Now  that  did  you 
good,  did  n't  it  ?  You  would  have  liked  to 
strike  a  little  higher,  would  n't  you  ?  "  "  Yes," 
said  the  witness,  "  but  you  know  I  was  represent- 
ing a  horse." 

In  a  libel  case  against  the  "  Boston  Daily  Ad- 
vertiser," one  of  the  counsel  asked  the  witness 

to  spell  a  certain  word.     Judge :  "  No,  we 

don't  keep  a  spelling-school  here." 

A  teamster,  who  was  testifying  in  a  thin 
voice  which  could  hardly  be  heard,  was  asked 
by  the  judge :  "  What  did  you  say  your  busi- 
ness is  ?  "  Witness  (very  softly)  :  "  Teamster." 
Judge  :  "  What  do  you  do  when  you  wish  to 
stop  your  horses  ? "  The  obvious  reply,  and 
what  the  judge  expected,  was  that  he  would 
say  in  a  louder  tone,  "  Whoa  !  "  to  which  the 
judge  would  then  say,  "  Then  talk  as  you  do 
to  them."  Bat  the  witness  said,  "  Haul  up 
my  reins."  The  answer  was  so  unexpected  to 
all  that  the  audience  tittered  and  the  judge 
wanted  to. 

In  a  case  which  was  brought  against  the  city 
of  Boston  by  a  conductor  of  the  West  End 
Road,  for  injuries  received  by  striking  against 
a  post  which  was  erected  outside  of  a  building 
as   a   barrier,  the   conductor   standing   on   the 


USING   DUE    CARE.  215 

running-board  of  the  liorse-car,  collecting  fares, 
the  defendant's  counsel,  Colonel  Hopkins,  con- 
tended that  the  conductor  was  not  using  due 
care ;  he  ought  to  have  looked  as  he  rode  along. 
Plaintiff's  counsel  contended  that  he  was  sup- 
posed to  be  safe  without  doing  that,  as  he  was 
collecting  fares  and  could  not  be  all  the  time 
looking  out  for  his  safety,  and  that  the  doctrine 
contended  for  by  the  defendant  would  be  more 
than  due  care  ;  he  illustrated  it  in  this  way : 
"  When  Barnum's  show  was  traveling  tln-ougli 
the  State,  one  of  his  elephants  fell  through  a 
bridge,  which  was  afterward  repaired.  Two 
years  afterward  the  same  show  was  traveling 
on  the  same  road  and  when  that  elephant  came 
to  the  bridge  he  would  not  go  over  it,  nor  could 
he  be  induced  nor  compelled  to  do  so,  and  they 
had  to  go  round  six  miles  to  cross  the  river. 
That  elephant  used  due  care,  and  that  is  my 
brother's  definition  of  due  care." 

A  witness  was  asked,  "  Did  you  not  say  when 
asked  about  this  accident  that  the  hack  was 
going  like  h — 1?"  Witness:  "Like  what?" 
Counsel :  "  Like  h — ^1 ;  don't  you  know  what 
I  mean  ? "  Witness  (bending  his  head  and 
thinking  for  a  few  seconds)  :  "•  Oh,  yes,  I  know 
what  you  mean  now."  (Laughter.)  Counsel: 
"  Well,  did  you  use   that  expression  ?  "     Wit- 


216  OBITER   DICTA. 

ness  :  "  Yes,  I  guess  I  did."  (Loud  laugliter, 
in  wliicli  the  judge  joined.) 

A  witness  being  called,  I  told  counsel  that  he 
had  not  been  sworn.  Counsel :  "  Oh,  yes,  he 
was."  Clerk,  to  witness  :  "  \Vere  you  sworn, 
sir?"  Witness:  "  AVhat 's  that?"  Counsel: 
"  Did  you  swear  this  morning  ?  "  Witness  :  "  I 
do  occasionally."  Counsel :  "  Oh,  no  ;  did  you 
hold  up  your  hand  this  morning  and  take  the 
oath  ?  "     Witness  :  "  Oh,  no,  sir." 

A  suit  was  brought  against  Thomas  Dana,  a 
member  of  the  Hollis  Street  Church,  to  recover 
payment  for  putting  in  a  memorial  window  in 
the  church.  The  late  H.  Bernard  Carpenter 
was  then  pastor,  and  Dana  claimed  that  Car- 
penter was  to  deliver  lectures  to  pay  for  the 
window.  Mr.  Howes,  cross-examining  Mr.  Dana : 
"  Were  you  not  advising  with  Mr.  Carpenter 
about  lectures  ?  "  Mr.  Dana  :  "  No,  sir ;  the  idea 
of  my  advising  with  Mr.  H.  Bernard  Carpenter 
about  Greek  and  Latin  things  is  absurd.  I 
should  never  do  that  with  H.  Bernard  Carpen- 
ter." Mr.  Howes  :  "  Did  he  deliver  Latin  lec- 
tures?" Mr.  Dana:  "No,  they  were  worse." 
(Mr.  Carpenter  sitting  in  the  court  room, 
smiling.) 

An  action  of  tort  was  brought  against  some 
contractors  who  were  building  a  drain,  the  earth 
having  fallen  in  and  damaged  the  plaintiff.     A 


A   SENSITIVE   LAWYER.  217 

verdict  was  given  for  him,  and  the  defendant's 
counsel,  a  late  governor,  an  excellent  lawyer  but 
a  very  sensitive  man,  immediately  filed  a  motion 
for  a  new  trial.  Judge  William  Allen  said  he 
would  hear  it  at  once,  and  it  was  heard  very 
shortly  afterwards.  For  two  or  three  mornings 
after  that,  a  gentleman  representing  the  defend- 
ant's counsel  came  to  me  and  asked  me  each  time  : 
"  Has  Judge  Allen  decided  that  motion  yet  ?  " 
I  told  him :   "  No."     Finally  he  said,  one  day, 

"  Mr. ,   the    defendant's  counsel,  has    gone 

home ;  he  says  the  verdict  has  made  him  sick, 
and  he  will  not  come  out  until  the  motion  is  de- 
cided." At  the  opening  of  the  court  that  morn- 
ing I  said  to  the  judge  :  "  I  shall  be  obliged  to 
call  you  doctor."    He  asked  why.    I  said  :  "  Mr. 

is  at  home  suffering  from  the  effects  of  that 

verdict,  and  will  not  come  out  until  you  have 
decided  the  motion."  He  said :  "  Set  the  ver- 
dict aside,  and  give  him  a  new  trial."  I  sent 
word  to  the  counsel,  and  he  was  down  in  the 
afternoon. 

In  an  action  of  Randolph  vs.  O'Riordan  et 
al.,  which  was  brought  to  recover  damages  for 
personal  injuries,  the  defendants  were  repre- 
sented by  two  different  counsel,  their  liability 
claimed  to  be  separate  and  distinct.  After  the 
evidence  was  all  in,  there  was  some  contention 
between  the  counsel,  carried  on  in  an  undertone, 


218  OBITER   DICTA. 

as  to  which  one  should  begin  to  close.  The 
judge,  noticing  the  delay,  said:  "What's  the 
matter,  gentlemen  ?  "  Mr.  B.  :  "  Your  honor, 
we  can't  seem  to  decide  which  one  shall  go 
ahead."  The  judge  :  "  Gentlemen,  I  don't 
think  it  makes  any  material  difference ;  it  is 
something  I  cannot  determine  or  order.  I 
think  you  must  settle  it  between  yourselves ;  at 
least  I  trust  you  will."  Then  the  following 
conversation  was  carried  on  between  the  counsel, 
sotto  voce.  B.,  turning  to  H. :  "I  '11  toss  up  a 
cent  for  choice."  H. :  "  All  right."  B.,  pro- 
ducing a  nickel  from  his  pocket,  put  it  between 
his  hands,  shook  it,  and  said  :  "  What  '11  you 
have,  H.  ?  "  H. :  "  Tail."  B.,  opening  his  hand 
and  disclosing  tail,  said  :  "  I  have  lost  and  you 
have  won,  I  '11  go  ahead  ;  "  and  he  did.  The 
judge,  jury,  and  spectators  all  seemed  interested 
in  the  game,  and  when  the  result  was  announced 
they  seemed  to  know  what  had  been  going  on 
and  how  it  came  about. 

When  it  was  customary  to  call  the  docket  on 
the  first  day  of  every  term  there  was  much  fun. 
I  called  an  action,  Smith  vs.  The  Butchers'  and 

Drovers'  Bank.    Judge remarked :  "  Eather 

a  bloody  affair,  Mr.  Clerk." 

Mr.  Hodges  was  trying  an  action  before 
Judge    Charles   Allen,    about  a  sale  of  cigars. 


AN   IMPORTANT   LAW   BOOK.  219 

"  I  understand,  Mr.  Hodges,  this  is  a  case  of 
cigars,"  said  Judge  Allen.  "  No,  your  honor," 
cried  Mr.  Hodges  ;  "  it  is  only  a  couple  of  boxes." 

Judge ^y,   meeting    Mr.    C,  said  :    "  Mr. 

C,  have  you  seen  my  new  book  ?  "  Mr.  C.  : 
"  No,  sir ;  who  are    the    publishers  ?  "      Judge 

^y :    "  Little  &  Brown."     Mr.  C. :    "  What 

is    the    title  ? "      Judge  :    "  Y 's   overruled 

cases." 

In  1883,  not  long  before  his  death,  I  rode  up 
town  with  Wendell  Phillips,  and  had  a  pleasant 
chat  with  him.  We  talked  about  old  slavery 
times,  and  among  other  things  he  told  me  that 
while  the  hearing  was  going  on  in  the  court 
room  relative  to  the  rendition  of  Sims,  Mon- 
cure  D.  Conway,  a  Virginian  who  was  study- 
ing at  Cambridge,  presented  liimseK  at  the  door 
of  the  court  room  (where  scarcely  any  of  oiir 
people  were  admitted),  saying :  "  From  Vir- 
ginia," and  was  instantly  admitted.  Conway 
circiUated  the  story  rather  freely  and  it  got  into 
the  newspapers,  so  that  when  he  next  presented 
himself  the  officer  replied  :  "  No  use,  sir,  you 
can't  go  in,  we  know  you.''^ 

In  an  action  of  tort  to  recover  damages  for 
injury  to  a  boy  run  over  some  two  years  before 
the  trial,  Mr. ,  the  defendant's  counsel,  of- 


220  OBITER    DICTA. 

fered  in  evidence  a  letter  written  to  him  by  his 
client  two  years  before  the  trial,  relative  to  the 
accident,  stating  what  he  would  be  willing  to  do 
for  the  boy.  The  plaintiff's  counsel  very  properly 
objected.  The  Court  said  he  was  surprised  at 
the  offer  and  the  objection,  and  plaintiff  allowed 
it  to  go  in,  rather  than  have  the  comments  of 
the  defendant's  counsel  on  his,  the  plaintiff's,  ob- 
jection. I  think  that  if  such  evidence  can  be 
admitted  there  is  no  end  to  any  hearsay  testi- 
mony. 

There  was  an  action  of  tort  brought  by  Still- 
man  B.   Allen,    Esq.,  against  Dr.  Blaikie,  the 

pastor  of  the Presbyterian  Church,  for  the 

falling  of  a  slate  from  some  portion  of  the  roof, 
and  in  the  course  of  the  trial  it  did  not  ap- 
pear precisely  that  it  came  from  the  roof  of  Dr. 
Blaikie's  church.  The  plaintiff  got  a  large  ver- 
dict. The  presiding  judge  then  said  (counsel 
and  jury  being  present)  :  "  Gentlemen,  I  want 
the  stenographer's  notes  put  into  English  as  soon 
as  possible,  so  that  I  can  read  them,  for  if  I  am 
not  very  much  mistaken,  there  is  not  a  particle 
of  evidence  upon  which  this  verdict  can  stand  for 
a  moment."  And  afterward  the  verdict  was  set 
aside  upon  a  hearing. 

Among  the  judges  of  the  Court  of  Common 
Pleas  there  was  one,  now  deceased,  famous  for 
setting  aside  verdicts  without  any  hearing.    Mr. 


THE    GERM   THEORY   IN   COURT.  221 

brought  an    action    of    tort   (I  forget  the 

case)  to  recover  damages  for  a  client.  The 
jury    returned   a   verdict  for    the    plaintiff   for 

$1000.     Upon  reading  the  verdict,  Judge  

said  :  "  Mr.  Clerk,  set  aside  this  verdict,  unless 

plaintiff  remits  all  over  $300."     Mr.  rose 

and  said  :  "  I  decline  to  accept  $300."  Judge : 
"  Mr.  Clerk,  set  aside  this  verdict  unless  the 
plaintiff  in  five  days  remits  in  writing  all  over 
$300."  At  the  next  trial  the  plaintiff  recovered 
a  verdict  for  $1300. 

I  remember  Mr.  William  J.  Hubbard,  in  ar- 
guing the  motion  for  another  trial,  said,  "  May 
it  please  your  honor,  I  think  this  verdict  should 
be  set  aside  toties  quoties,  a  doctrine  which  the 
Supreme  Court  has  lately  confirmed." 

The  immigrant  suit  for  damages.  An  ex- 
pert's opinion  as  to  the  origin  of  typhoid  fever. 
The  trial  of  the  case  of  Gannon  vs.  The  Allan 
Steamship  Company  was  continued.  The  first 
officer  testified  as  to  the  cleanliness  of  the  shij)  on 
the  voyage  complained  of,  and  several  steerage 
passengers  testified  that  their  berths  were  clean 
and  the  quality  of  the  food  furnished  was  good. 
Dr.  Draper  said  that  the  origin  of  typhoid  was  a 
germ  entering  the  system  and  poisoning  it,  the 
poison  producing  fever.  Counsel :  "  Is  it  neces- 
sary that  each  attack  of  typhoid  shall  have  a  pre- 


222  OniTER   DICTA. 

vious  germ  to  originate  it  ?  "  Dr.  Draper : 
"  Yes."  Judge  Pitman  :  "  How  can  you  speak  so 
positively  when  you  don't  know  the  origin  of  the 
germ?  The  first  case  could  not  have  had  a 
germ  from  a  previous  case."  Dr.  Draper : 
"  Well,  1  don't  know."  Judge  :  '^  Then  it 's 
simply  the  dogmatism  of  science." 

On  cross-examination,  Dr.  Draper  said  he  was 
a  strong  believer  in  the  germ  theory.  He 
thought  that  no  case  of  typhoid  was  contracted 
except  by  germs  of  a  previous  case.  In  other 
words  it  must  be  taken  from  a  person  already 
afflicted,  the  germs  being  passed  into  the  system 
generally  through  the  mouth  by  means  of  food 
or  water.  No  matter  how  filthy  the  quarters 
were,  or  how  rotten  the  food,  if  there  were  no 
typhoid  patient  aboard,  there  would  be  no 
typhoid  contracted.  That  was  his  belief,  though 
he  could  not  be  absolutely  certain.  Medical 
authorities  differed  on  the  subject. 

When  Mr.  Dabney  argued  for  the  plaintiff, 
he  made  the  following  remarks  relative  to  it. 
He  said  :  "  Suppose  one  of  you  gentlemen  of  the 
jury  found  a  spear  of  wheat  or  a  stalk  of  corn 
growing  in  yovir  yard,  and  you  should  go  to  a 
farmer  and  tell  him  of  the  fact  and  ask  him  how 
it  came  there,  he  would  say  some  one  must  have 
dropped  a  seed  there.  Then  you  would  ask  him 
where  the  seed  came  from.      Could  he  answer? 


^iV  ATTORNEY'S    TACTICS.  223 

Or  if  you  found  an  egg  in  your  shed,  some  one 
would  say  a  hen  laid  it.  Say  you,  Where  did 
the  hen  come  from  ?  From  some  other  egg.  Yes, 
but  where  did  the  first  egg  come  from  ?  I  don't 
know.       And  which  came  first,  the  hen  or  the 

In  the  case  of  Levy  vs.  Bornstein,  tried  in  the 
first  session  of  the  Superior  Court  in  April,  1890, 
a  witness  called  by  the  defendant  in  the  course 
of  his  cross-examination  testified  as  follows  :  — 

"You  have  been  a  frequenter  of  gambling 
saloons,  have  you  not  ?  " 

"  I  have  not." 

"  Do  you  mean  to  tell  me  that  you  have  not 
frequented  gambling  saloons  in  Boston  ?  " 

"  I  have  been  in  a  few  times." 

Defendant's  counsel :  "  Wait  a  moment." 

Witness :  "  I  would  just  as  lief  answer  the 
question.  I  have  been  a  few  times  in  a  gambling 
house,  not  enough  to  call  myself  a  frequenter." 

"  You  have  lost  sums  of  money  in  gambling?  " 

"  I  have  played  cards,  and  won  and  lost." 

"  You  have  played  faro  ?  " 

"  A  few  times." 

Defendant's  counsel :  "  Wait  a  moment." 

Witness  :  "  I  have  not  the  slightest  objection 
to  answering.  I  have  played  cards  with  you  in 
a  club-room." 


224  OBITER   DICTA. 

Pliiintlff' s  coimscl :  "  That  is  true." 

"  And  you  have  phiyed  faro  at  a  public 
table?" 

"  I  have." 

"  And  you  were  expelled  from  that  club-room, 
when  you  played  with  nie,  were  you  not?" 

"No,  sir,  I  didn't  consider  that  I  was.  I 
did  n't  like  their  society,  and  went." 

"  They  would  n't  play  cards  with  you  ?  " 

"  They  always  did." 

"  Not  at  the  time  you  left  ?  " 

"  My  last  experience  was  playing  cards  where 
you  were  concerned.  I  lost  my  money,  and  I 
did  n't  like  the  company,  and  I  left." 

Plaintiff's  counsel :  "  I  know  you  were  smart." 

The  witness  :  "  Not  as  smart  as  you,  for  you 
got  my  money." 

This  is  not  to  give  the  whole  facts,  but  enough 
to  show  the  tactics  of  the  defendant's  attorney. 

Quite  a  celebrated  case  was  Coyle  vs.  The 
Fitchburg  Railroad.  The  plaintiff,  when  a 
passenger  on  the  outward  train  from  Boston  to 
Cambridge,  was  holding  a  newspaper  with  both 
bands,  his  right  elbow  resting  on  the  inner  win- 
dow shelf ;  the  first  thing  he  felt  was  a  blow  on 

the  arm,  and  a  man  behind  him  said  :  "Mr. , 

your  arm  is  off."     He  lifted  his  arm  and  found 
that  the  sleeve  and  one  cord  and  a  portion  of 


A    STRAXGE    RAILROAD    ACCIDENT.        225 

tlie  skin  held  it,  the  bone  being  entirely  severed 
uboiit  half-way  between  the  elbow  and  the 
shoulder.  A  freight  train  had  met  this  passen- 
ger train,  and  the  plaintiff  claimed  that  a  door 
of  the  refrigerator  car  was  loose,  and  as  the  car 
passed  some  portion  of  this  door  —  the  hasp  or 
fastening  —  flew  into  the  window  and  caused 
the  injury. 

The  witness  who  testified  that  he  discovered 
the  arm  was  off  said  that  there  was  a  dent  in 
the  side  of  the  window,  appearing  to  have  been 
made  by  some  iron  ;  that  he  saw  the  refrigerator 
door  swinging,  and  that  after  the  accident  he 
called  the  attention  of  the  brakeman  on  the 
freight  car  to  it.  One  witness  said  that  there 
was  a  rocking  or  a  jolting  of  the  car  at  the 
time  when  the  injury  occurred.  The  defendant 
contended  that  the  plaintiff  had  his  arm  pro- 
jected out  of  the  window,  and  some  evidence 
was  introduced  tending  to  show  that  the  plain- 
tiff's arm  was  resting  at  full  length  on  the  sill  so 
that  some  portion  projected  outside.  Defendant 
admitted  the  jolt,  or  jar,  and  the  concussion. 
He  also  admitted  that  the  door  of  the  freight 
car  was  loose,  and  the  swaying  of  the  cars  to- 
gether. It  did  not  appear  that  any  mark  was 
made  inside  the  car.  Surgical  evidence  was 
introduced  to  show  that  the  arm  could  not  have 
been  taken  off  unless  something;  solid  was  back 


226  OBITER   DICTA. 

of  it  to  strike  against.  The  defendant  argued 
that,  as  there  was  no  dent  inside,  the  injury  was 
done  outside.  The  case  was  tried  four  times. 
I  was  told  that  the  plaintiff  might  have  had  a 
verdict  for  $)5000  at  one  of  the  trials,  but  that 
one  juror  would  not  give  any  more,  while  the 
others  wished  to  increase  the  amount,  I  was 
also  told  that  the  plaintiff  had  eleven  jurors  at 
each  of  the  three  trials.  The  fourth  trial  re- 
sulted in  a  verdict  for  plaintiff  for  iGOOO. 

Willis  et  al.  vs.  The  Merchants'  and  Miners' 
Transportation  Company  was  an  interesting 
case,  in  which  H.  E.  B.  appeared  for  the  plain- 
tiff, and  R.  S.  for  the  defendant.  On  August 
28,  1886,  the  defendant's  steamship  Chatham, 
going  out  through  the  Narrows,  ran  into  the 
yacht  Edith,  which  claimed  to  be  becalmed. 

The  plaintiff's  brother,  who  was  sailing  in  the 
yacht,  was  thrown  into  the  water  by  the  collision, 
and,  after  swimming  some  distance  after  the 
drifting  yacht,  was  drowned.  The  statute 
giving  damages  for  death  did  not  apply,  and 
the  action  was  for  the  common  law  damages 
sustained  by  the  deceased  in  his  lifetime.  It 
was  claimed  that  the  deceased,  in  anticipating 
the  collision  and  in  swimming  afterwards,  suf- 
fered nine  minutes.  The  jury  at  the  first  trial 
gave  the  plaintiff  a  verdict  for  15500,  which  was 


NINE   MINUTES    OF   SUFFERING.  227 

set  aside  by  the  Court,  and  a  new  trial  granted 
as  to  damages  only ;  and  at  the  second,  trial  a 
verdict  was  given  for  -19000.  This  was  set  aside 
by  the  Court,  and  an  entry  was  ordered  to  be 
made  on  the  docket  that  unless  the  plaintiff  ac- 
cepted $500  thei'e  should  be  a  new  trial. 

On  the  trial  of  this  case,  many  witnesses 
swore  that  there  was  a  dead  calm  at  the  time. 
A  young  lady,  daughter  of  the  keeper  of  Long 
Island  Light,  said  :  "I  left  Long  Island  in  a 
boat  with  a  shoulder-of-mutton  sail,  to  go  to 
Eainsford ;  before  I  got  there  I  was  becalmed, 
and  after  waiting  some  time  I  was  obliged  to 
take  my  oars ;  the  water  was  very  smooth." 
"  How  smooth  ? "  said  the  plaintiff's  counsel. 
Witness :  "  The  extreme  of  smooth."  On  cross- 
examination,  Mr.  Stone  asked  :  "  Was  n't  there 
a  ripple  on  the  water  ?  "  Witness  :  "  No,  sir." 
Mr.  Stone  :  "  Are  you  sure  there  was  no  ripple 
on  the  water  ?  "  Witness,  with  great  naivete  : 
"  That  was  what  I  was  waiting  for." 

Correspondence  between  two  lawyers,  relative 
to  the  killing  of  a  cow  by  a  locomotive. 

Letter  of  plaintiff's  counsel  to  defendant's 
counsel  :  — 

"  Dear  Sir,  —  The  cow  is  an  animal  in- 
tended by  nature  to  provide  man  with  a  most 


22S  OBITER   DICTA. 

lii<;lily  valued  article  of  food  duri'ncf  its  lifetime, 
and  at  its  death,  when  propeily  killed,  and  the 
carcass  skillfully  taken  care  of  and  divided,  also 
furnishes  an  important  element  for  man's  sus- 
tenance. 

"  When,  therefore,  a  railroad  company  throws 
its  locomotive  engine,  running  at  a  high  rate  of 
speed,  recklessly  against  this  unoffending  and 
docile  animal,  it  is  a  perversion  of  nature,  and 
as  such  is  highly  reprehensible ;  so  that  when, 
on  October  12  of  the  current  year,  one  of  your 
engines  destroyed  the  life  of  Bridget  Fitzgerald's 
valuable  cow,  your  company  was  guilty  of  the 
unnatural  act  aforesaid.  This  cow  cost  her,  only 
a  few  weeks  before  its  decease,  the  sum  of  f  94, 
and  was  worth  that  amount  at  that  time,  and  I 
should  be  inclined  to  waive  any  additional  value 
which  might  ordinarily  be  supposed  to  attach  to 
it  because  of  her  ownership  thereof.  She  has 
informed  me  of  the  acts  of  negligence  on  the 
part  of  your  company  upon  which  she  relies 
for  her  case,  and  is  of  the  opinion,  with  which  I 
agree,  that  you  are  liable  to  her  for  the  value 
aforesaid. 

"  Of  course,  acting  in  this  matter  as  her  attor- 
ney, any  suggestion  which  I  might  make  you 
would  be  entirely  disinterested,  and  as  such  I 
have  no  doubt  you  would  treat  my  advice  that 
you  pay  the  claim  promptl3\ 


BRIDGET   FITZGERALD'S    COW.  ~'1S) 

"  Trusting  that  the  matter  may  be  adjusted  to 
our  mutual  satisfaction,  I  am,"  etc. 

Answer  of  defendant's  counsel :  — 

"  Dear  Sir,  —  Your  favor  of  the  9th  inst.,  to 
the  General  Superintendent,  has  been  handed 
to  me  for  reply.  I  have  no  record  of  any  cow 
having  been  killed  on  the  12th  day  of  October, 
belonging  to  Bridget  Fitzgerald,  but  I  find  a 
statement  that  on  the  13th  of  October  an  ani- 
mal of  this  species,  supposed  to  belong  to 
Margaret  Fitzgerald,  lost  its  life  at  Cambridge. 

"  As  the  date  is  immaterial,  and  as  Margaret 
'  under  any  other  name  would  '  probably  '  smell 
as  sweet,'  I  shall  take  no  advantage  of  these 
discrepancies. 

"  I  agree  with  you  fully  as  to  the  high  charac- 
ter of  the  cow  as  a  domestic  animal,  and  as  to  the 
tenderness  with  which  it  should  be  treated,  and 
the  caresses  which  ought  to  be  lavished  upon  it. 
If  this  kind  treatment  is  due,  as  you  allege  and 
as  I  admit,  from  a  railroad  corporation  which 
has  no  interest  in  tlie  animal,  except  the  benevo- 
lent interest  which  corporations  alwaj^s  take  in 
the  property  and  rights  of  others,  how  much 
more  is  it  incumbent  upon  the  owner  of  the 
beast,  to  whom  the  Almighty  has  especially  in- 
trusted its  care,  to  discharge  that  trust  with 
fidelity. 


230  OBITER   DICTA. 

"  The  cow,  as  you  are  aware,  is  not  only  gre- 
garious, but  is  in  the  habit,  when  let  loose,  of 
wandering  about  in  pursuit  of  food  and  the  gra- 
tification of  its  desires.  In  a  crowded  locality 
like  tlie  city  of  Cambridge  this  propensity  is  not 
unattended  with  danger,  and  it  is  the  duty  of 
the  owner  to  take  all  proper  means  to  prevent  it. 
This  important  duty  was  entirely  neglected  by 
your  client  Bridget  (or  Margaret,  as  the  case 
may  be).  The  cow  escaped  from  the  place  pro- 
vided for  her  in  the  kitchen  of  your  client  or 
elsewhere.  After  aimlessly  wandering  about, 
she  tresjjassed  upon  the  tracks  of  this  company, 
an  offense  punishable  in  the  case  of  a  human 
being  by  fine,  and  often  attended  in  the  case  of 
a  cow  with  more  serious  consequences,  viz.  the 
loss  of  life  itself.  I  understand  that  under  these 
circumstances  this  company  is  not  liable,  and  I 
have  no  doubt  you  will  agree  with  me. 

"  You  say  that  you  are  inclined  to  waive  any 
additional  value  which  may  be  supposed  to  at- 
tach to  this  cow  on  account  of  its  ownership. 

"  Such  liberality  is  a  cause  of  suspicion,  and 
upon  investigation  I  find  that  the  claim  of  your 
client  was  only  $85,  showing  that  in  her  judg- 
ment the  cow  had  depreciated  since  it  had  come 
into  her  possession,  in  the  sum  of  i9.  Whether 
this  was  due  to  improper  care,  or  to  the  moral 
effect  of  an  intimate  association  with  your  client, 


BRIDGET   FITZGERALD'S    COW.  231 

is  immaterial.     I  think  if  you  will  inquire  into 
the  facts  of  the  case,  you  will  see  that  I  am 
correct.     If  not,  I  should  be  happy  to  receive 
additional  information  in  regard  to  the  matter. 
"  Very  truly  yours." 


vn. 

IN   RE-TORT.  —  PART   I. 

In  trying  a  case  against  some  corporation, 
Mr.  John  S.  Abbott  said :  "  I  wish  to  know  if 
any  of  the  jury  own  stock  in  the  defendant 
company."  Judge  Dewey  :  "  If  any  juror  has 
stock  in  this  company  he  will  signify  it  by  ris- 
ing." No  one  rose.  Judge  Dewey  :  "  No  juror 
is  so  fortunate."  Mr.  Abbott:  "Perhaps  they 
would  be  willing  to  take  a  little  stock,  so  as  to 
get  off  from  the  jury." 

Stillman  B.  Allen,  as  it  is  well  known,  got 
remarkably  large  verdicts  in  actions  of  tort  for 
injuries.  Mr.  Sohier  once  asked  me  who  was 
in  the  next  case.  I  said  :  "  Stilbnan  B.  Allen." 
"  Oh,"  said  he,  "  damnum  ahsque  injuria  Allen." 

E.  W.  Hutchins  was  trying  a  case  as  oppos- 
ing counsel  to  Mr.  Allen,  and  exhibited  to  the 
jury  a  diagram  he  had  drawn.  Mr.  Allen,  look- 
ing it  over,  said :  "  Mr.  Hutchins,  you  are  a 
better  lawyer  than  draughtsman."  Mr.  Hutch- 
ins replied :  "  Then  I  am  unlike  you,  for  you 
are  a  better  draughtsman  than  lawyer." 


A    GREAT    GALE.  233 

There  was  some  dispute  or  contention  as  to 
the  weight  of  a  derrick,  and  one  of  the  contrac- 
tors said  he  didn't  get  it  down,  because  he 
had  n't  men  enough.  Allen  in  closing  gaid  to 
the  jury  (looking  at  one  of  the  smallest  on  the 
panel,  a  man  who  could  not  have  weighed  over 
a  hundred  pounds),  "•  Mr.  Juror,  you  are  the 
youngest  and  weakest-looking  man  on  the  jury, 
but  I  think  that  you  and  another  like  you  could 
take  that  derrick  up  as  easily  as  Samson  did  the 
gates  of  Gaza,  and  carry  it  on  your  shoulders  to 
Charlestown  Neck  without  stopping ;  and  if  you 
can't  you  had  better  go  to  the  hills  of  New 
Hampshire  and  recruit." 

William  B.  Gale,  in  an  argument  for  the  de- 
fendant in  a  suit  for  personal  injuries  in  which 
Stillman  B.  Allen  was  counsel  for  plaintiff, 
warned  the  jury  against  the  arts  of  Allen,  who 
had  no  superior  at  the  bar  in  crying  and  begging 
a  verdict  out  of  the  jury.  Allen  in  closing  re- 
marked that,  tired  as  he  was,  he  had  listened  to 
the  argument  of  his  brother  Gale  for  an  hour 
with  the  greatest  interest.  "  I  always  like  to 
hear  my  brother  Gale,  as  he  has  such  a  big, 
strong,  hearty,  breezy  voice ;  but  I  remember 
many  years  ago,  when  I  stood  as  a  boy  on  my 
father's  farm,  I  heard  a  great  strong  gale  blow- 
ing through  the  twelve  sturdy  oaks.  It  made  a 
good  deal  of  noise  among  the  branches,  but  the 


234  IN  RE-TORT. 

(jaJe  soon  subsided,  the  oaks  stood  up  as  strong 
as  before,  and  there  was  nothing  of  it  left." 

Stillman  B.  Allen  and  Thomas  M,  Babson 
were  trying  a  case,  opposed  to  each  other.  Al- 
len said  the  street  was  so  and  so,  stating  it. 
Babson,  taking  a  cent  from  his  pocket,  said  :  "  I 
bet  you  a  cent  you  have  n't  been  there  for  two 
years."  Allen  said :  "  I  was  there  yesterday 
afternoon,"  took  the  cent,  and  pocketed  it. 

After  asking  several  questions,  S.  B.  Allen, 
counsel  for  the  defendant,  continued  :  "  Was  a 
list  of  creditors  read  at  the  first  meeting  when 
young  Carr  was  present?"  The  Court :  "On 
what  ground  do  you  ask  the  question,  to  contra- 
dict the  previous  witness,  or  to  show  what  in- 
debtedness there  was  on  the  15th  of  June  ?  "  Mr. 
Allen  :  "  I  offer  it  to  contradict  the  witness." 
The  Court:  "Then  it  is  immaterial."  Mr.  Al- 
len :  "  Then  I  offer  it  on  the  other  ground." 
The  Court:  "Then  it  is  not  competent." 

Elbridge  Gerry  Austin  was  an  aristocratic 
and  somewhat  irascible  man.  Shortly  after  I 
commenced  duties  in  the  office,  he  left  Boston 
and  went  to  California.  Law  prices  ruled 
quite  high  then  in  California.  A  commission 
was  sent  out  from  our  office  to  take  the  deposi- 
tion of  a  witness  in  San  Francisco.  Austin  took 
it,  and  the  charge  here  would  not  be  over 


BOSTON   MEANNESS.  235 

He  charged  i50,  and  the  Court  cut  him  down  to 
815.  He  wrote  Lack  a  letter  to  the  office,  stat- 
ing- that  he  supposed  he  shoukl  have  to  take  it, 

but  that  it  was  another  specimen  of  the  d 

Boston  meanness. 

I  have  before  spoken  of  Colonel  Meacham,  the 
horse-dealer.  A  little  incident  once  took  place 
between  him  and  Charles  P.  Curtis,  Esq.  Mr. 
Curtis  had  a  low  two-wheeled  chaise,  and  a  roan 
mare  which  he  had  owAed  some  time,  and  which 
stood  quietl}^  while  he  was  getting  in  and  out, 
and  was  also  a  good  traveler.  She  became  lame, 
and  Mr.  Curtis  borrowed  a  horse  of  a  friend  of 
his,  Mr.  Lucius  M.  Sargent,  Colonel  Meacham 
then  kept  a  stable  in  Haymarket  Square,  and 
was  a  strikino-  fiorure  in  his  blue  coat  with  brass 
buttons,  black  trousers,  buff  vest,  and  very  high 
collar.  Mr.  Curtis  drove  down  in  front  of  the 
stable,  and  Colonel  Meacham  appeared,  and  in 
his  pompous  way,  pulling  up  his  high  collar  with 
each  hand,  said :  "  What  can  I  do  for  you,  Mr. 
Curtis  ?  "  Mr.  Curtis  said  :  "  Colonel,  my  roan 
mare  is  lame,  and  I  borrowed  this  horse  of  my 
friend  Mr.  Sargent,  and  I  like  him  very  much. 
I  wish  you  would  look  him  over,  see  if  he  is  all 
right,  and  tell  me  what  I  shall  give  for  him,  and 
I  will  pay  you  the  same  commission  as  though  I 
bought  the  horse  of  you."     The  colonel  looked 


236  IN  RE-TORT. 

in  the  face  of  the  liorse  (as  it  turned  ont,  for 
identification),  and  shook  his  head  very  know- 
ingly.    Mr.    Curtis    exclaimed,    "  What    is  the 

matter,  Colonel?"  Colonel  M looked   him 

over  again,  and  said,  "  Don't  you  buy  him,  Mr. 
Curtis."  "  I  am  sorry  to  hear  you  say  that,"  said 
Mr.  Curtis,  "  for  I  like  him  extremely ;  what  is 
the  trouble?"  "He  has  fits,  sir,"  said  the 
colonel.  "  Why,  Colonel,  how  is  it  possible  that 
you  can  look  a  horse  over  in  this  way,  and  say 
he  has  fits  ?  "  The  colonel  straightened  himself 
up,  and  again  pulling  up  his  collar  replied,  "  It 's 
my  profession,  sir."  The  fact  was  that  he  had 
sold  the  same  horse  a  short  time  before,  because 
it  had  fits  ! 

This  reminds  me  of  an  incident  which  my 
father  told  me  of  the  same  Mr.  Sargent,  when  he 
was  in  Harvard.  He  was  cnught,  Jf a ffrante  de- 
licto, getting  a  horse  up  into  the  halls  of  an  old 
building  of  the  college,  called  Massachusetts. 
At  the  meeting  of  the  faculty,  Mr.  Sargent,  be- 
ing present  in  answer  to  a  summons,  was  asked 
by  the  President :  "  Mr.  Sargent,  what  excuse 
have  you  to  offer  for  getting  a  horse  up  into 
the  halls  of  '  Massachusetts  '  ?  "  Mr.  Sargent 
replied  :  "  I  thought  it  no  harm,  Mr.  President, 
to  get  a  horse  up  where  so  many  asses  have 
been  before." 


WET   MEASURE.  237 

Mr.  A.  and  Mr.  B.  were  ojDposed  to  each 
other  ill  the  trial  of  a  cause.  Mr.  B.  had  a 
very  red  face,  and  Mr.  A.  a  very  white  one.  A 
witness  testified  that  a  certain  measure  was  a 
dry  measure.  Mr.  B.  (to  A.)  :  "  That  is  a 
measure  with  which  yoii  are  not  acquainted." 
A. :  "  Anybody  looking"  at  our  faces  can  tell 
who  knows  what  ivet  measure  is." 

Mr.  Somerby  was  once  cross-examining  a  wit- 
ness, who  kept  looking  at  Mr.  Avery,  the  coun- 
sel on  the  opposite  side.  Somerby  :  "  Witness, 
look  this  way,  and  don't  be  looking  at  Mr. 
Avery  all  the  time."  Avery:  '"■  If  he 'd  rather 
look  at  me  and  finds  it  pleasanter,  I  know  of  no 
reason  why  he  should  n't."  Somerby  :  "  No,  let 
him  look  at  me  ;  I  don't  know  what  signs  you 
may  give  him."  Avery  :  "  Ah,  Mr.  Somerby,  I 
don't  know  how  ;  you  know  I  was  not  educated 
at  your  office." 

Isaac  O.  Barnes  was  U.  S.  Marshal  when  I 
was  in  the  clerk's  office.  He  was  a  tall,  stout 
man  weighing  two  hundred  pounds,  with  a 
small,  thin  voice,  and  the  contrast  between  his 
voice  and  his  size,  which  was  heightened  by 
his  emphatic,  not  to  say  profane  speech,  made 
his  remarks  seem  funnier,  perhaps,  than  they 
really  were. 


238  IN  RE-TORT. 

There  was  a  man  named  Noyes,  who  had 
been  fiic'tt)tum  many  years  in  the  U.  S.  Court, 
and,  when  jMr.  Barnes  was  ajipointed,  Noyes 
went  to  him  to  retain  his  situation.  Barnes 
said  to  him  :  "  What  are  you  ?  "  "  I  am  under- 
bailiff,"  said  Noyes.  "  What  in  h — 1  is  under- 
bailiff  ?  "  '"'  I  sweep  out  the  room,  I  make  the 
fires,  I  raise  and  lower  the  curtains  at  the  com- 
mand of    Judge  Sprague,  whose    eyes    trouble 

him,  and  when  Mr.  A or  Mr. has  a 

case  coming  on  next,  I  notify  them."  "  Say 
that  last  again,"  said  Barnes.  Noyes  repeated 
it.  "  That  is,"  said  Barnes,  "  you  go  and  tell 
the  lawyers  to  attend  to  their  business." 
"  Well,  I    suppose    it    amounts    to    that,"    said 

Noyes.      "That's    a    d good     one,"     said 

Barnes  ;  "  I  '11  hire  you." 

I  was  going  up  the  court  house  steps  one  day, 
when  a  colored  man  was  washing  them.  Mr. 
Barnes  was  going  up  at  the  same  time.  "  What 
is  your  name?  "  said  Barnes.  "Callahan,"  said 
the  man.     "How  strange,"  said  Barnes,  "that 

you,  a  d nigger,  should  have  an  Irishman's 

name." 

When  Mr.  Barnes  was  taken  ill,  it  was  re- 
lated that  the  doctor  who  felt  of  his  pulse  and 
feet,  in  response  to  Mr.  Barnes's  question  as  to 
how  he  was  getting  along,  said :  "  Oh,  Mr. 
Barnes,  you  are  doing  very  well ;  no  j^ersou  ever 


THE   RESCUE    OF   SIIADRACII.  239 

died  with  such  warm  feet  as  you  have."  "  Oh, 
yes,  there  was  one,"  squeaked  Barnes.  ^  Who  ?  " 
asked  the  doctor.  "  John  Rogei's,"  said  Barnes. 
At  that  time  (slavery  times)  George  Young, 
the  hotel-keeper,  had  a  great  many  colored  men 
in  his  employ,  and  it  was  told  of  Barnes  that  he 
would  go  into  Young's  Hotel  and  say :  "  George, 

I  shall  be  after  some  of  your  d niggers,  so 

you  had  better  look  out ;  "  and  if  there  hap- 
pened to  be  any  runaway  slaves  there  they 
would  leave ;  but  finally  one  named  Shadrach 
was  taken.  He  was  arrested  by  one  Sawin, 
who  gave  him  into  custody  of  Patrick  Riley,  a 
deputy  marshal.  Shadrach  was  taken  up  into 
the  U.  S.  Court  room,  and  in  a  very  short  time 
it  was  noised  about,  and  a  crowd  of  eager  col- 
ored men,  some  forty  or  fifty  in  number,  ga- 
thered in  the  room.  When  the  officers  were  not 
particularly  on  their  guard,  his  friends  hustled 
him  out  of  the  court  room  and  all  of  them  ran, 
Shadrach  leading,  and  the  others  following.  I 
saw  and  followed  them  thi'ough  Bowdoin  Square, 
when  I  lost  sight  of  them.  He  effected  his 
escape,  and  this  might  be  called  the  first  chap- 
ter in  Massachusetts  under  the  then  recent  fu- 
gitive slave  law.  Charles  G.  Davis,  Esq.,  was 
complained  of  for  aiding  in  the  escape ;  he  was 
tried  before  U.  S.  Commissioner  B.  F.  Hallett, 
but  was  discharged. 


240  jx  RE-Tour. 

Mr.  Cole,  whom  I  have  mentioned  as  the  first 
clerk  in  the  office,  was  of  fine  personal  appear- 
ance, and  dressed  with  elegance  and  care,  and 
was  very  proud  of  it.  Mr.  Sidney  Bartlett  once 
gave  a  shock  to  his  vanity  in  the  following  man- 
ner :  Cole  was  a  witness,  and  after  he  had 
given  his  testimony  in  chief,  Mr.  Bartlett  upon 
cross-examination  asked  :  "  What  did  you  say 
your  name  was,  sir  ?  "  "  Cole,  sir."  "  Ah,  yes, 
but  your  Christian  name,  sir?"  "Raymond, 
sir."    "  Ah,  a  very  jjvetty  name  ;  step  down,  sir." 

Mr.  B and  Mr.  L were  once  trying 

a  case  in  which  the  Curtises  were  opposed.  At 
the  close  of  the  day,  one  of  the  Curtises  said  : 

"  Mr.  B ,  your  conduct  to-day  has  been  very 

discourteous,  and  if  you  wish  for  any  confirma- 
tion I  will  refer  you  to  your  colleague,  Mr.  L." 
The  next  morning,  the  Messrs.  Curtis  received 

a  note  from  Mr.  B which  stated  :  "  I  have 

referred  the  matter  to  my  colleague,  and  he  en- 
tirely concurs  with  you  in  your  opinion.  Yours 
truly,  B ." 

When  Mr.  Bartlett  was  about  eighty-eight 
years  of  age,  he  was  trying  a  case  in  which  Mr. 
Burgess  was  the  principal  witness.  Mr.  Bur- 
gess was  about  sixty  years  of  age.  In  his  clos- 
ing argument  Mr.  Bartlett  said  :  "  I  think  your 
honor  should  take  Mr.  B.  's  testimony  with 
some  grains  of  allowance,  as  his  memory  seems 


^A"   EXPANDER.  241 

to  be  afflicted  by  the  inherent  weakness  of  old 
age." 

A  near  relative  of  Mr.  Bartlett  had  the  same 
characteristic  sang-froid.  A  yonng-  man  from 
the  country  who  was  studying  law  with  Mr. 
Bartlett  invited  this  person  to  go  sleighing,  and 
he  spelt  it  "  slaying."  An  answer  was  returned 
to  the  young  man,  stating  that  the  person  in- 
vited had  no  desire  to  go  on  any  "  such  murder- 
ous expedition." 

Joseph  M.  Bell,  who  was  General  Butler's 
judge-advocate  at  New  Orleans,  and  a  man 
of  quick  and  ready  wit,  told  me  that  he  was 
riding  in  a  horse-car,  in  Boston,  when  he  met 
im  old  acquaintance  whom  he  had  not  seen  for 
some  time.  They  talked  about  the  war,  its 
causes,  etc.,  and  the  acquaintance  asked  Bell  how 
long;  he  thouirht  it  would  continue.  Bell  said 
he  differed  from  some,  and  that  perhaps  it 
might  last  two  or  three  years.  A  woman  sit- 
ting by  said,  "  Are  n't  you  a  contractor,  sir  ?  " 
"  No,  ma'am  ;  I  'm  an  expander." 

Mr.    E.    M.   B cited   an   authority,  and 

after  reading  it  said  :  "  My  case  follows  directly 
in  point,  legally,  inferentially,  consequentially, 
and  parenthetically." 

He  had  a  slight  altercation  with  Judge  Lord 


242  /A'    RE-TORT. 

about  the  law,  and,  after  some  sharp  remarlcs  on 
both  sides,  they  came  to  an  understanding. 
Judge  Lord  said :  "  If  you  had  not  been  so 
hasty,  and  had  treated  the  Court  with  a  little 
more  respect,  we  should  not  have  had  this  little 

misunderstanding."      Mr.    B put    on    his 

glasses,  looked  up  to  Judge  Lord,  and  replied : 
'^  I  trust  that  I  have  treated  the  Court  with  as 
much  respect  as  it  has  treated  me."  The  judge 
smiled,  and  said :  "  Proceed." 

At  the  trial  of  Gordon  vs.  The  New  York  and 
New  England  Railroad,  for  personal  injuries  re- 
ceived while  driving  under  a  bridge,  over  which 
a  train  was  passing,  the  plaintiff  claimed  among 
other  things  that  the  space  between  the  abut- 
ments  was  too   narrow  for   the  highway.     Mr. 

G ,  for  the  plaintiff,  used  at  the  trial  a  large 

wooden  model  of  the  premises  made  upon  two 
different  scales,  so  that  the  model  made  the 
bridge  look  four  times  as  high,  and  the  street 
four   times    as    narrow,  in    proportion,  as  they 

really   were.    Mr.    B ,    for   the    defendant, 

commenting  on  the  model  in  his  argimient,  said : 
"  Now,  gentlemen,  suppose  in  this  case  it  was 
very  important  for  you  to  know  exactly  how  my 

brother    G looked,    and    suppose    you   had 

never  seen  him  and  I  presented  you  with  a  plas- 
ter model  of  his  head ;  but  suppose,  instead  of 


A    MISLEADIXG   MODEL.  243 

making"  it  exactly  like  him,  I  made  his  ears 
four  times  as  long,  in  proportion  to  their  width, 
as  they  really  are;  ou  his  own  theory,  that 
would  be  the  most  accurate  way  of  showing  to 
you  his  true  character." 

Aaron  A.  Bradley  was  a  mulatto  who  came 
from  the  South  to  practice  law.  In  one  case  he 
had,  he  told  Mr.  Knapp,  clerk  of  the  Justices' 
Court,  that  he  ^\'ished  to  be  present  at  the  taxa- 
tion of  costs.  Mr.  Knapp  said  he  must  file 
a  caveat.  He  was  gone  a  few  moments  and 
brought  in  a  paper  in  which  it  was  stated : 
"  Now  comes  the  defendant,  and  files  his  Caveat 
emptor^ 

At  another  time  he  came  into  our  office  and 
handed  me  a  paper,  which  he  wished  me  to  file. 
I  read  it,  and  it  was  substantially  like  this: 
"  Now  comes  the  defendant  and  files  his  'plxiis 
darrina  continuance.'^  I  said,  "  This  is  not  in 
form ;  I  cannot  take  that ;  what  kind  of  a  plea 
is  that  ?  "  He  said,  "  If  you  don't  take  that, 
here 's  another  I  want  you  to  file."  I  said, 
"  Let  me  see  it."  "  And  now  comes  the  plain- 
tiff and  moves  for  a  writ  of  orditor  querolous.'"' 
"  Well,"  I  said,  "  I  suppose  you  mean  this  for 
a  writ  of  audita  qiierela,  and  this  I  think  you 
must  move  the  Court  for." 

He  once  filed  what  he  called  a  plea  in  abate- 


244  IN  RE-TORT. 

ment ;  Robert  Morris  filed  a  replication  ;  where- 
upon Bradley  filed  a  paper  to  be  used  as  an  an- 
swer in  the  event  of  the  overruling-  of  the  plea 
in  abatement.  It  began  :  "  And  now  comes  the 
defendant  and  nisi  jjiirious  says,"  etc. 

Once  in  some  warm  controversy  with  Robert 
Morris  he  said  :  "  Mr.  Morris,  j^ou  tink  to  ele- 
vate yourself  by  putting  me  down,  but  if  you 
do,  you  will  turn  from  a  nigger  to  a  white  man, 
very  quick." 

He  brought  au  action  once  on  an  account  an- 
nexed. Robert  Morris  defended  it.  "  Where 
are  the  credits  you  say  you  gave  my  client  ? " 
said  Morris,  none  appearing  in  the  declaration. 
"What '11  you  have,  my  lord?"  said  Bradley. 
"  Gosh,"  said  Morris,  "  I  wish  I  was  your  lord, 
I  'd  make  you  step  round  ;  but  where  are  the 
credits  ?  "  Bradley,  being  cornered,  turned  to 
the  Court  and  said  :  "  Dis  is  de  way  I  gib  de 
credit ;  de  count  am  two  hundred  dollars,  de  ab 
damnum  is  one  hundred  dollars ;  dat  is  de  way 
I  gib  him  credit  for  de  one  hundred  dollars." 

After  Bradley  was  expelled  from  the  bar,  by 
the  Superior  Court,  he  petitioned  the  latter 
court  for  a  review,  and  the  case  went  to  the 
Commonwealth  Court  on  questions  of  law.  He 
undertook  to  go  into  facts.  The  Chief  Justice 
told  Mr.  Bradley  he  did  n't  wish  for  any  facts,  but 
the  law.     Said  Bradley  :  "  His  honor  the  Gov- 


A     WALL-EYED     \VJrNE:^S.  245 

ernor  of  the  Commonwealth  [Governor  Andrew], 
when  he  was  eonueeted  with  this  case,  tokl  me 
to  send  up  all  the  facts  I  could  get,  but  it  seems 
his  honor  the  governor  is  of  no  validity  in  this 
court."  "  Confine  yourself  entirely  to  the  law," 
said  Judge  Dewey.  To  this  Bradley  rejoined : 
"  I  now  by  order  of  Court  fall  back  on  de  cold 
naked  icy  hand  ob  de  law.  There  are  gi-ave 
accu-si-a-tions  made  against  me." 

After  having  been  disbarrred  he  brought  a 
petition  to  be  re-admitted.  He  began  to  read 
his  petition  as  follows :  "  Suffolk  double  s." 
He  said  Mr.  Andrew  had  assisted  him  ex  gi'citio, 
but  he  (Bradley)  felt,  "  in  de  langwidge  ob  de 
immortal  bard,  dat  whoever  would  be  free  his- 
self  must  strike  de  blow ;  and  so,  your  honor, 
I  have  put  myself  in  de  eminent  deadly  breach." 

Mr.  Hallett  said  to  a  witness  :  "  Have  you 
that  wall  [referring  to  a  certain  stone  wall]  in 
your  eye  ?  '  J.  H.  Bradley,  standing  by  me, 
said,  "  If  he  has,  he  is  wall-eyed." 

Lewis  S.  Dabney  was  a  son-in-law  of  the  late 
Chief  Justice  Bigelow.  While  the  Chief  Justice 
was  on  the  bench,  the  Court  decided  a  case  by 
the  majority,  and  the  Chief  Justice  gave  a  dis- 
senting opinion.  Afterwards  a  case  was  argued 
to  the  Supreme  Court,  in  which  Mr.  Dabney 


24 G  j\  iii:-TOHT. 

cited  the  opinion  of  the  Supreme  Judicial  Court 
in  the  former  case  for  his  hiw.  Mr.  Kichard 
Stone  cited  the  dissenting  opinion  of  the  late 
Chief  Justice.  The  Supreme  Court  overmled 
the  former  case,  and  adopted  the  former  dis- 
senting opinion.  Mr.  Stone  told  Mr.  Dabney 
that  he  lost  his  case  by  not  adhei'ing  to  the 
opinion  of  his  father in  law. 

Mr.  N.  B.  B 1,  a  fine  stalwart-looking  man, 

accidentally  got  a  black  eye.  A  few  days  before, 
there  had  been  a  pugilistic  combat  between  one 
Dempsey  and  a  man  called  The  Marine,  and  the 

latter  got  badly  pounded.     When  Mr.   B 1 

came  into  his  office,  Mr.  Charles  Bartlett  was 
there,  and  a  boy  who  had  evidently  been  reading 
the  newspapers  drew  near  to  Mr.  Bartlett  and 
asked,  in  a  whisper  :  "  Is  that  The  Marine  ?  " 

Mr.  N.  B.  B 1  said  as  to  a  paper  :  "  The 

date  is  1874."     Mr.  I.  W.  Richardson :   "  No,  it 

is  1873."     B 1 :    "  So  much  the  worse  for 

you."     Richardson :  "  It  may  be,  but  give  the 

devil  his  due."     B 1 :  "  Yes,  sir  ;  you  shall 

be  i^aid  in  full." 

In  a  horse  case,   Mr.   Swasey  commenced  a 
cross-examination  of  a  witness  :  — 
"  What  is  your  name,  sir  ?  " 
"  Patrick  McSweeney." 


A    WETERINARY  STURGEON.  247 

"  What  is  your  business  ?  " 

"  Weterinary  sturgeon,  sor." 

"  Where  have  you  practiced  ?  " 

"  In  the  Unoited  States  and  elsewhere." 

"  Where  ?  " 

"  On  the  loin  of  Cambridge  and  Sonierville, 
sor." 

In  the  same  case  Mr.  Bryant  offered  some 
evidence,  to  which  Mr.  Swasey,  in  rather  a  low 
voice,  objected.  Mr.  Bryant :  "  I  don't  quite 
hear  the  melodious  utterances  of  my  brother 
Swasey." 

Before  the  war,  I  had  a  large  collection  of 
autographs  of  distinguished  men.  After  Gen- 
eral Butler  went  to  Fortress  Monroe,  I  wrote  to 
him,  asking  him  to  send  me  one  of  his  auto- 
graphs to  put  in  my  collection.  He  answered 
my  letter  in  this  way  :  "  Dear  Willard,  you  will 
find  my  autograph  on  many  of  your  old  writs. 
Yours  truly,  Benj.  F.  Butler." 

General   Butler  was    trying  a  case  and    Mr. 

G g  was  opposed  to  him.     The  general  was 

whispering   audibly  with    Mr.  Washburne,  his 

junior.     Mr.    G g    said    he    thought  it  was 

not  quite  fair  to  whisper  what  was  not  intended 
for  the  jury  so  loud,  that  not  only  the  jury 
must  have  heard  it,  but  that  he  (G g),  who 


248  IX   RE-TORT. 

was  farther  ofp,  heard  it  also.  Butler  :  "  I  am 
sorry  you  have  such  loug  ears." 

Mr.  Pelton  and  General  Butler  were  trying 
a  case  in  which  they  were  oj)posed  to  each  other. 
Pelton  remarked  :  "  In  the  magnificent  wisdom 
of  Mr.  Butler,  he  has  chosen  to  "  —  Butler  : 
"  I  think  the  gentleman  should  not  characterize 
my  remarks  to  the  Court  as  magnificent  wis- 
dom." Pelton :  "I  beg  pardon  if  I  exceeded 
the  bounds  of  propriety."  Butler,  smilingly : 
"  Ah,  yes,  I  saw  you  lost  your  temper  a  little, 
and  that  is  the  precursor  of  another  loss  ;  to 
wit,  your  case." 

A  snit  was  on  trial  in  which  General  Butler 
was  sued  by  a  person  to  recover  for  services  on 
a  ranch.  The  general  asked  a  question  of  a 
witness  which  I  don't  remember,  but  which  was 
in  language  somewhat  nautical.  The  opposing 
counsel  said  :  "  General,  that  is  a  little  too  nau- 
tical ;  we  are  ashore  now."  Butler  :  "  I  suppose 
you  think  I  'm  at  sea." 

General  Butler  tried  a  case  before  Judge 
Merrick,  who  was  of  counsel  for  Dr.  Webster 
for  the  murder  of  Dr.  Parkman.  Professor 
Horsford  was  on  the  stand  as  witness.  Butler 
treated  the  professor  rather  cavalierly,  and 
Judge  Merrick  asked  Butler  if  he  was  aware 
who  was  on  the  stand.  Butler:  "Yes,  your 
honor  ;  Mr.  Horsford."     Judge  Merrick :  "  Pro- 


GENERAL    BUTLER- S    DROLLERY.         249 

fessor  Horsford,  professor  in  Harvard  Univer- 
sity." Butler  :  "  Ah,  yes,  your  honor  ;  I  never 
knew  but  one  professor  at  Harvard,  and  he  was 
hano-ed."     (This  was  Dr.  Webster.) 

Mr.  Lane  claimed  a  trial.  He  said  the  case 
had  been  postponed  a  number  of  times  for  this 
same  reason,  the  absence  of  Senator  Jones  of 
Nevada,  and  the  gentleman  on  the  other  side 
(General  Butler)  had  promised  to  have  his 
deposition  here.  Butler  :  "  It  has  been  taken, 
but  Senator  Jones  has  lost  it."  Mr.  Lane  :  ""  I 
don't  know  what  business  Senator  Jones  has 
with  his  own  deposition."  Butler  (with  a  most 
droll  expression)  :  "  I  know  of  no  statute  which 
prevents  Senator  Jones  bringing  along  his 
deposition  with  him." 

General  Butler,  who  had  drooping  eyelids  and 
was  nearsighted,  was  trying  a  cause  in  which 
John  P.  Treadwell  was  opposed  to  him.  Tread- 
well,  while  reading  law  to  the  Court,  inadvert- 
ently turned  towards  the  jury.  Butler  said : 
"  That  will  not  do,  brother  Treadwell,  reading 
law  to  the  Court  and  looking  at  the  jniy." 
When  the  general  rose  to  reply  and  read  his 
citation  of  the  law,  Treadwell  thought  that 
Butler  was  doing  the  same  thing,  and  said : 
"  Ah,  brother  Butler,  you  are  now  doing  what 
you  rebuked  me  for,  reading  law  to  the  Court 
and  looking  at    the    jury."     The  general,  with 


250  /,V    RE-TORT. 

a  most  comical  grimace,  looking  round  to  the 
bar  and  the  audience,  said :  "  You  can't  tell 
which  way  I  am  looking." 

Richard  M.  Carroll,  some  time  since,  sued 
Messrs.  Rich  and  Stetson  of  the  Howard  Athe- 
naeum for  breach  of  contract.  Mr.  Carroll 
alleged  that  he  was  hired  by  the  defendants  to 
come  on  from  New  York,  and  to  perform  at 
their  theatre  for  the  entire  season ;  that  he 
began  to  carry  out  his  part  of  the  contract  and 
performed  for  some  time,  when  the  defendants 
refused  to  carry  out  tlieir  agreement.  The 
result  of  this  was  a  lawsuit ;  and  no  doubt  the 
contest  would  have  been  close  to  see  who  should 
win,  but  the  morning  when  the  case  was 
reached  I  rose  and  read  an  agreement  signed  by 
the  coimsel  on  behalf  of  their  clients,  wherein 
it  was  agreed  that  the  defendants  should  pay 
the  sum  of  '3^280  to  the  General  Relief  Commit- 
tee for  the  benefit  of  the  sufferers  by  a  late  fire, 
and  that  such  payment  should  be  a  final  and 
amicable  settlement  of  all  mutual  claims  be- 
tween the  parties  to  the  suit.  On  the  bottom 
of  the  page  in  the  handwriting  of  one  of  the 
counsel  were  these  words,  "  Go  thou  and  do 
likewise ; "  certainly  as  good  advice  as  lawyer 
ever  gave  client. 

Governor  Andrew  and  P.  W.  Chandler  were 


''WHERE    IS   POLLY   SMITH?"  251 

trying  a  cause  wherein  a  certain  Polly  Smith 
was  often  mentioned  as  being  an  important  wit- 
ness. She  seemed  to  be  a  mysterious  sort  of  a 
personage,  and  she  did  not  appear,  Mr.  Chand- 
ler in  his  closing  argument,  after  a  few  remarks, 
exclaimed,  "  Where  is  this  Polly  Smith  ? " 
Governor  Andrew  remarked  rather  quietly, 
"  She 's  dead."  Mr.  Chandler,  who  was  some- 
what deaf,  did  not  notice  it,  and  in  a  short  time 
exclaimed  a  little  louder :  "I  ask  you  again, 
gentlemen  of  the  jury,  where  is  this  Polly 
Smith  ? "  Governor  Andrew  replied  in  a 
louder  tone,  "  I  tell  you  she 's  dead."  Mr. 
Chandler  did  n't  notice  that.  As  he  approached 
the  close  of  his  argument  he  said :  "  I  ask  you 
for  the  third  and  last  time,  gentlemen,  where 's 
this  Polly  Smith?"  Governor  Andrew  rose 
and  shouted  in  Mr.  Chandler's  ear,  "  I  tell  you 
she  's  deady  "  Gentlemen  of  the  jury,  "  said 
Mr.  Chandler,  "  she  never  was  b-o-r-n." 

Mr.  Chandler,  being  somewhat  deaf,  as  I 
stated,  in  trying  a  case  with  Mr.  John  P.  Healy 
said  to  a  witness  who  was  testifying  in  a  very 
low  voice,  "  Speak  louder ;  my  brother  Healy 
does  not  hear  very  well." 

Charles   H.  C brought  a  suit   in  which 

he  and  some  half-dozen  others  were  plaintiffs 
against    John    Smith    (a   fictitious    name)    to 


252  IN  RE-TORT. 

recover  money  lost  in  certain  5'?msi-chance 
transactions  ;  he  prevailed,  recovered  the  money, 
and  told  his  clients  he  was  obliged  to  take  for 
the  debt  certain  bonds  which  he  was  to  hold  for 
two  months  to  ascertain  whether  they  would  be 
paid.  When  the  two  months  expired,  and  the 
parties  came  for  their  money,  he  told  them  that 
another  trouble  had  arisen,  that  a  person  in 
Worcester  had  brought  a  bill  in  equity  against 
himself  and  Smith  and  the  person  who  trans- 
ferred the  bonds,  and  that  they  might  be  obliged 
to  wait  years  until  the  bill  in  equity  was  decided. 
A  short  time  after,  being  at  home  one  evening 
with  his  wife  and  her  brother,  he  said  he  would 
have  a  cup  of  tea  and  then  take  a  bath,  and 
wash  out  all  his  sins.  He  went  up  to  his  bath- 
room, took  a  bath,  came  down  to  the  sitting- 
room  entirely  nude,  and  said :  "  Am  I  not  clean, 
and  have  n't  I  washed  out  all  my  sins  ?  Now  I 
am  going  out  to  show  the  people  of  Chelsea  how 
I  washed  them  out."  With  great  difficulty 
they  restrained  him.  At  night  he  was  a  raging 
maniac,  and  in  a  few  days  he  died.  The  pre- 
tended reception  of  the  bonds  was  a  fiction  to 
gain  time,  and  the  bill  in  equity  was  brought  by 
a  fictitious  plaintiff. 

Linus  M.  Child  :  "  Now  the  case  of vs. 

must  be  familiar  to  your  honor."     Judge  : 


A   PREMATURE   EXCEmON.  253 

"  I  am  supposed  to  be  familiar  with  all  cases," 
Child  :  "  Yes,  your  honor,  but  if  your  honor 
wants  to  hear  me  "  —  Judge  :  "  I  don't  want 
to  hear  you."  Child :  "  Then  [laughing]  I 
don't  want  to  be  heard."  Judge :  ''  I  don't 
mean  it  in  that  sense  ;  you  might  lighten  up  the 
dull  routine  of  the  court  room  by  some  pertinent 
remarks." 

Mr.  Child  trying  a  case  for  the  plaintiff, 
Nathan  Morse  for  the  defendant,  to  almost 
every  question  Mr.  Child  asked,  Mr.  Morse 
said,  "  I  object."  Judge  Bacon  sustained  the 
objection,  and  Mr.  Child  said,  "  I  except." 
Soon  Mr.  Child  became  quite  impatient,  and  to 
the  next  question  he  asked,  Mr.  Morse  said :  "  I 
object."  "  Ruled  out,  and  I  except,"  said  Mr. 
Child.  Judge  Bacon :  "  I  don't  say  so." 
Child :  "  No,  your  honor,  but  I  thought  you 
would." 

I  was  present  one  day  at  a  trial  in  the  United 
States  Court,  where  a  case  of  barratry  was  being 
tried,  for  criminally  casting  away  a  ship  some- 
where near  the  coast  of  Sumatra.  Mr.  Choate 
pressed  the  captain  of  the  ship  as  to  what 
another  captain  said  about  the  plan  of  casting 
her  away.  The  witness  hesitated,  but,  on  being 
more  severely  pressed,  answered  :  "  The  captain 
said  we  should  never  be  found  out,  and  if  we 


254  7^-  RE-TORT. 

were,  there  was  a  lawyer  in  Boston  named 
Choate  who  woukl  get  us  oft"  if  we  had  the 
money  in  our  boots." 

Joseph  M.  Bell  told  me  that  when  Mr. 
Choate  was  in  Augusta  to  defend  Judge  Davis 
from  charges  of  impeachment,  or  removal  by 
legislature,  Mr.  Choate  was  sick  and  a  physician 
was  sent  for.      Among  other  things  the  doctor 

remarked :    "  Mr.    Choate,    I  think  it  a  d 

shame  that  party  politics  should  remove  judges 
for  no  fault."  Mr.  Choate  :  "  Doctor,  I  agree 
with  you  in  your  very  pious  remark." 

Some  one  was  standing  in  the  corridor  near 
the  Supreme  Court  room  talking  with  Mr. 
Choate,  and  asked  him  what  was  going  on  in 
the  court  room.  Mr.  Choate  replied  :  "  Mr. 
Bartlett  has  the  ear  of  the  Court  now."  "  How 
is  he?"  asked  the  former.  Mr.  Choate,  with  a 
very  graceful  movement  of  his  right  arm, 
answered  :  "  S-e-r-e-n-e."  It  is  impossible  to 
describe  this  answer,  in  any  manner,  because  it 
is  impossible  to  reproduce  the  rising  inflection 
of  his  voice,  on  the  latter  syllable. 

I  remember  two  imjjortant  cases  which  were 
tried  in  the  Meionaon  while  the  Superior  Court 
of  the  County  of  Suffolk  was  held  there.  One 
was  the  case  to  recover  some  promissory  notes, 
purporting  to  be  signed  by  one  Tufts.  The 
action  was  brought  by  William  L.  Burt,  after- 


A    QUESTION   IN   GEOGRAPHY.  2oi> 

wards  postmaster  of  Boston.  G.  A.  SoracvLy 
defended.  This  was  the  first  case  in  which 
photographs  of  the  notes  were  introduced.  The 
trial  was  before  Mr.  Justice  Morton,  late  Chief 
Justice  of  the  Supreme  Court.  Mr.  Somerby 
objected  to  the  introduction  of  the  photographs, 
but  they  were  admitted,  and  Judge  Morton's 
decision  was  afterwards  sustained  by  the  Su- 
preme Court.  Mr.  Somerby  asked  me  what  I 
thought  of  the  signatures.  Ltold  him  I  thought 
they  were  genuine.  "  Pooh,"  he  said,  "  when 
they  get  their  case  in  I  '11  knock  them  to  the 
devil  in  five  minutes."  But  the  jury  returned 
a  verdict  against  him  in  about  thirty  minutes. 

The  other  case  was  Seccomb  et  al.  vs.  The 
Provincial  Insurance  Company,  to  recover  for 
the  loss  of  a  ship  which  was  insured  to  go  to  the 

port  of   ,  or  ports  in   Europe.      She   went 

to  Smyrna,  took  some  troops  to ,  and  was 

lost.  The  principal  point  upon  wdiich  the  case 
turned  was  whether  Smyrna  was  regarded  by 
merchants  and  under writei's  as  a  port  in  Europe. 
Testimony  that  Smyrna  was  regarded  as  a 
port  in  Europe  was  given  by  witnesses  about 
eqvial  in  point  of  numbers  to  those  who  testified 
that  it  was  regarded  as  a  port  in  Asia.  The  trial 
was  before  Judge  Huntington  ;  Mr.  Choate  and 
Mr.  Homer  were  for  the  plaintiff,  Mr.  C.  W.  Lor- 
ing  and  Mr.  R.  H.  Dana  for  the  defense.     Both 


256  IN   RE-TORT. 

counsel  were  wary,  and  each  on  tlie  rpn  vivo  to 
get  in  all  sorts  of  testimony.  At  one  time  when 
Mr.  Choate  w^as  a  little  off  his  guard,  while  con- 
versing with  his  junior,  Mr.  Dana  began  read- 
ing from  a  book,  and  Mr.  Choate's  junior  called 
his  attention  to  it.  "  Stop,  stop,"  said  Mr. 
Choate;  "what  have  you  tliere,  sir?"  "Why, 
this  is  so  and  so  "  [stating  the  title  of  the  book, 
which  named  the  principal  ports  in  Eurojie  and 
Asia].  "Who  are  the  publishers?"  inquired 
Mr.  Choate.  "  The  celebrated  firm  of  Long- 
man, Ilurst  &  Rees,"  replied  Mr.  Dana.  "  Is 
it  a  good  book  ?  "  inquired  Mr.  Choate.  "  Yes," 
said  Mr.  Dana,  "  none  better."  "  Well,  Mr. 
Dana,"  said  Mr.  Choate,  "  if  it  is  a  good  book, 
I  '11  buy  it.  I  object  to  it,  your  honor."  And 
then  in  that  indescribable  manner  of  his  he  pro- 
truded his  under  lip,  and  winked  at  me.  The 
book  was  ruled  out. 

Speaking  of  Mr.  Choate  reminds  me  that  I 
once  overtook  him,  on  Washington  Street,  and 
when  we  reached  Williams  Court,  I  said: 
"  Let 's  go  through  here,  Mr.  Choate  ;  it  is  a 
short  cut  to  the  court  house."  As  we  advanced 
a  little  way  he  looked  at  me  and  said :  "  Dis- 
reputable but  convenient." 

Mr.  Choate  was  about  to  leave  Boston  on  a 
trip  to  Europe  in  18 — .  A  few  days  before  he 
sailed  I  wanted  to  see  him,  and,  not  wishing  to 


LIBELOUS   LANGUAGE.  257 

interrupt  him  in  a  trial,  I  waited  at  the  bottom 
of  the  court  house  staii's.  He  came  clown  look- 
ing very  wan  and  weary,  his  circular  cloak 
thrown  over  his  shoulders,  and  his  neck  wrapped 
in  a  bandanna  handkerchief.  I  said  :  "  Mr. 
Choate,  I  learn  you  are  going  to  Europe  ;  I  hope 
you  will  have  a  very  pleasant  voyage,  and  return 
much  refreshed.  Do  you  think  you  shall  be 
about  here  this  autumn,  for  I  want  to  see  you 
very  much?"  He  put  his  arm  around  my  neck 
in  the  most  affectionate  manner,  and  patting  me 
softly  said :  "  Mr.  Willard,  I  expect  to  be 
about  here  a  hundred  years."  He  died  in  Hali- 
fax in  about  a  week. 

There  was  a  long  discussion  on  legal  points 
before  Jvidge  Metcalf  one  day,  between  Mr. 
Charles  G.  Loring  and  Mr.  Choate.  As  Mr. 
Choate  was  about  to  reply  to  some  remarks  of 
Mr.  Loring,  Judge  Metcalf  said  :  "  I  have  been 
sitting;  with  hammer  in  hand  for  the  last  two 
hours  to  knock  this  case  on  the  head."  Mr. 
Choate,  who  was  for  the  defendant,  said  :  "I 
hope  your  honor  will  not  hit  the  defendant." 

There  was  a  man  named  Atldns,  a  trader, 
asainst  whom  one  or  two  actions  of  slander 
were  brought  every  term.  John  C.  Park  was 
his  counsel,  and  though  the  amount  sought  to 
be  recovered  was  sometimes  large,  Mr.  Park 
would  reduce  the  verdict  to  fifty  or  seventy-five 


258  IN  HE-Tour. 

dollars.  Once  he  retained  Mr.  Choate,  and  in 
this  case  the  verdict  against  Atkins  was  for 
fifteen  hundred  dollars.  Then  he  went  to  Mr. 
Park  and  said :  "  What  can  I  call  a  man  and 
not  be  sued  ?  "  "  A  number  of  things."  "  Can 
I  call  him  a  fool  ?  "  "  Yes."  "  Can  I  call  him 
a  jackass?  "  "  Yes."  "  Can  I  call  him  a  nin- 
compoop ? "  "  Yes."  A  short  time  after,  a 
person  who  happened  to  be  Mr.  Park's  client 
came  into  his  office,  and  brought  him  a  letter 

addressed  to  the  client  which  read  :   "  Mr. . 

Dear  Sir :  You  're  a  d fool,  a  jackass,  and  a 

nincompoop.  Yours,  T.  J.  Atkins."  When 
Atkins  came  into  Mr.  Park's  office,  Mr.  Park 
said :  "  I  told  you  you  could  call  a  man  those 
names  ;  I  did  n't  tell  you  you  could  write,  so  to 
him." 

Mr.  Bell,  son-in-law  of  Mr.  Choate,  told  me 
that  Mr.  Choate  was  very  careless  as  to  his 
accounts.  Mr.  Bell  was  once  in  the  outer  office, 
when  Mr.  P.  came  in  and  said,  "I  want  my 
bill,  Mr.  Bell ;  I  want  to  pay  it."  "  What  case 
was  that?"  said  Mr.  Bell.  "  So  and  so,"  nam- 
ing the  case.  Bell  went  into  the  inner  office 
and  told  Mr.  Choate  the  facts  and  asked  him 
how  much  it  was.  He  replied,  "  I  've  forgotten 
all  about  it ;  I  don't  know  what  to  charge." 
And  that  was  all  the  information  Mr.  Bell 
could  get.     Mr.  Bell  made  out  a  bill  for  $1000. 


A   PERTINACIOUS   PRACTITIONER.         259 

Mr.  P.  took  it,  looked  at  it,  and  said :  "  Bless 
my  soul,  I  did  n't  think  I  should  get  oft"  so 
cheap,"  and  drew  his  check  for  the  amount. 

Colonel  Edward  G.  Parker,  who  was  rather 
pedantic,  wrote  a  life  of  Mr.  Choate.  He  was 
relating  to  some  parties  an  incident  which 
liappened  in  the  third  century  B.  c,  about  the 
time  of  the  death  of  Ptolemy  III.,  and  he  ap- 
pealed to  John  S.  Holmes,  who  stood  by,  and 
said  :  "  Did  n't  he  die  about  that  time,  John  ?  " 
"  Who  's  that  that 's  dead  ? "  asked  Holmes. 
"  Ptolemy  III.,"  said  Parker.  "  Good  Lord," 
said  Holmes,  stretching  out  his  hands,  "you 
don't  say  he  's  dead  !  " 

A  Mr.  E.,  wlio  was  practicing  at  the  Suf- 
folk bar  in  1858,  was  very  pertinacious.  I 
said  one  day  to  Mr.  Choate  :  "  Mr.  E.  always 
seems  to  maintain  his  grip."  "  Yes,"  said  Mr. 
Choate,  "  he 's  a  bidldog  with  a  confusion  of 
ideas." 

The  wind  was  blowing  a  gale,  large  branches 
of  trees  were  being  snapped  off,  innumerable 
articles  flying  about  through  the  air,  when  Mr. 
Choate,  looking  out  of  the  back  windows  of  the 
Athenaeum,  where  Park  Street  Church  and 
Granary  Burying-Ground  were  in  fidl  sight, 
remarked  to  a  friend :  "  I  see  amidst  all  this 
turmoil  our  old  friend  the  steeple  of  Park 
Street  Church  stands  unmoved,  un terrified,  and 


2(50  IX   RE-TORT. 

undismayed  ;  but  all  those  [waving  his  hands 
over  the  graves]  lie  safest  through  all  this  hurly- 
burly." 

Major  Cobb  having  closed  an  argument, 
Mr.  E.  G.  Dudley,  his  opponent,  remarked 
among  other  things :  "  My  brother  Cobb  has 
made  some  rare  remarks  to  you,  gentlemen." 
Major  Cobb  :  "  Some  persons  would  say  they 
were  well  done." 

Moses  G.  Cobb  was  examining  a  witness  in  a 
cow  case.  The  witness  was  asked  how  he  could 
tell  the  age  of  a  cow,  and  kept  referring  to  the 
age  of  the  cow  about  which  the  suit  was  brought. 
Cobb  :  "  I  don't  refer  to  this  particular  one,  sir ; 
I  refer  to  the  abstract  cow  ;  the  abstract  cow  in 
her  normal  condition."  Witness :  "  I  don't  per- 
ceive any  crisis  for  judgment." 

Mr.  Timothy  Coffin  of  New  Bedford,  better 
known  as  Tim  Coffin,  was  famous  for  his  at- 
tempts to  bluff  the  Court.  One  day  with  great 
appearance  of  surprise  and  anger  he  said  to  the 
Court :  "  Does  your  honor  mean  to  say  that  the 
testimony  is  thus  [stating  it] ,  and  that  you  shall 
rule  the  law  so  and  so  ?  "  "  Yes,  sir,"  said  the 
judge.  After  a  moment's  pause,  finding  he 
could  take  nothing  by  his  motion,  he  sat  down, 
saying,  "  I  tliiuk  so,  too." 


A    COMMON   DRUNKARD.  261 

Judge  H.  G.  O.  Coll)y,  who  was  a})i)()into(l  in 
1845,  rosiguetl  in  1847,  and  died  in  1853,  was 
at  one  time  prosecuting  attorney  in  Bristol 
County.  A  man  was  complained  of  for  being  a 
connuon  drunkard.  ]Slr.  Timothy  Coffin  de- 
fended. The  evidence  was  that  he  drank  six 
glasses,  of  liquor  a  day.  Mr.  Coffin  said  he 
thought  that  the  prisoner  ought  to  be  discharged, 
"  for  if  drinking  six  glasses  a  day  makes  a  man  a 
common  drunkard,  may  the  Lord  have  mercy  on 
brother  Colby  and  myself." 

Ex-Chief  Justice  Brigham  told  me  tliis  story 
about  Mr.  Coffin.  He  (Coffin)  was  very  anx- 
ious to  obtain  a  delay  in  a  case  which  came  up 
one  morning,  and,  after  several  ineffectual  ap- 
peals to  the  opposite  counsel,  made  an  affidavit 
as  to  the  severe  exhaustion  he  was  in,  having  for 
many  days  and  nights  been  in  constant  attend- 
ance on  his  mother,  who  was  very  ill.  After  he 
had  read  the  affidavit,  his  mother,  who  happened 
to  be  attending  court  without  his  knowledge,  and 
who  was  in  the  gallery,  exclaimed  so  that  all 
heard  her :  "  Timothy,  how  often  have  I  flogged 
thee  for  lying  ?  " 

An  action  was  brought  for  a  technical  assault 
on  board  a  steamboat.  The  plaintiff'  testified 
that,  as  he  was  about  to  be  seated  at  the  break- 
fast-table, the  defendant  took  him  by  the  shoul- 


262  IN  RE-TORT. 

der  and  told  him  that  was  not  the  place  for 
him,  but  to  go  to  the  other  place,  and  led  him 
along.  Judge  Pitman  :  ''  What  is  the  other 
place  ?  "  "  Sometimes  it  is  spoken  of  in  a  bad 
sense."  Mr.  Daly,  the  defendant,  was  a  short, 
dumpy  man.  Mr.  Collins,  his  counsel,  asked  the 
plaintiff  if  it  was  not  a  colored  waiter  who  put 
his  hand  on  his  shoulder,  instead  of  Daly.  Wit- 
ness :  "  I  don't  know."  Mr.  Collins :  "  Washing- 
ton  [the  waiter],  stand  up."  Washington,  a 
very  stout  colored  man,  about  six  feet  tall, 
stood  up.  Mr.  Collins  :  "  Now  is  n't  that  the 
man  who  put  his  hand  on  your  shoulder  ?  " 
Witness:  "I  don't  know."  Mr.  Collins: 
"  Can't  you  tell  the  difference  between  Wash- 
ington and  little  Daly  here  ?  " 

B.  F.  Cooke  was  a  practitioner,  and  once  being 
absent  when  his  case  was  called,  Mr.  William 
Brigham,  who  w^as  on  the  other  side,  asked  for  a 
non-suit,  which  was  granted.  Cooke  was  quite 
a  dissijiated  man.  He  had  recently  changed  his 
name  to  Cressy  on  account  of  some  legacy  which 
had  been  left  him.  He  made  a  motion  to  take 
off  the  non-suit,  and  said  :  "  I  am  surprised  at 
the  opposition  of  my  brother  Brigham  [who 
opposed  it]  ;  if  I  had  been  in  his  situation,  and  I 
was  asked  to  take  off  the  non-suit,  I  should  have 
done  it  without  hesitation.     I  have  n't  changed 


A    FAR-AWAY    LOOK.  263 

my  principles,  only  my  name."  Mr.  Brighani 
retorted  thus :  "  If  you  had  changed  your  prin- 
ciples instead  of  your  mime  you  would  have  done 
a  great  deal  better  ;  "  and  he  was  so  surprised  at 
his  own  joke  that  he  laughed  immoderately.  It 
was  the  only  joke  that  I  ever  heard  him  make. 

Lewis  S.  Dabney  and  Edwin  N.  Hill  were 
endeavoring  to  prove  the  due  and  proper  execu- 
tion of  a  will.  One  witness  testified  that  he 
thought  the  testator  was  not  sane  nor  of  dispos- 
ing mind,  but  that  if  counsel  would  withdraw  the 
words  "  disposing  mind,"  he  would  testify  that  he 
thought  he  was  sane.  Another  testified  that  as 
she  stood  on  one  side  of  him,  the  testator  being 
in  bed,  she  was  struck  with  the  expression  of 
his  eyes,  which  had  a  dreadful  far-away  look 
that  had  haunted  her  to  this  day.  After  her 
testimony  was  in,  Mr.  Dabney  called  a  witness 
who  testified  as  to  the  "  far-away  "  eye,  that  it 
was  glass. 

In  a  certain  case,  the  late  James  Ring,  who 
was  a  comic  actor  at  the  Boston  Museum,  was 
called  as  a  witness.  On  cross-examination  by 
Richard  H.  Dana  came  the  following  :  — 

Mr.  Dana :  "  Mr.  Ring,  I  believe  you  are  an 
actor?" 

Ring:  "Yes,  sir." 


264  IN  RE-TORT. 

Dana :  "  You  perform  at  the  Museum  ?  " 

Ring :  "  Yes,  sir." 

Dana :  "  You  are  in  the  habit  of  performing 
different  parts  ?  " 

Ring  :  "  Yes,  sir." 

Dana :  "  And  you  take  whatever  part  is  as- 
signed to  you  ?  " 

Ring  :  "  Yes,  sir." 

Dana  :  "  I  thought  so  ;  step  down,  sir." 

Mr.  Dickinson,  examining  a  witness  :  "  What 
was  the  principal  difficulty  ?  " 

Witness :  "  Ligatures  out  of  order." 

Dickinson  :  "  What  are  the  ligatures  ?  " 

Witness  :  "  Ligatures  connect  the  muscles." 

Dickinson  :  "  What  do  the  tendons  do  ?  " 

Witness  :   "  Connect  the  nerves." 

In  another  case,  against  the  West  End  Rail- 
road, Mr.  Dickinson,  in  cross-examining  a  cer- 
tain physician  who,  Dickinson  thought,  pro- 
fessed to  know  more  than  he  did,  asked  him  the 
following  questions :  — 

Dickinson :  "  What  test  did  you  apply  to 
ascertain  what  was  the  matter  with  the  man?" 

Witness  :  "  The  Rhomboid  test." 

Dickinson  :   "  Describe  it." 

Witness  described  a  certain  test. 

Dickinson  :  "  Do  you  know  this  Rhomboid?  " 

Witness:   "No." 


77//:   nilOMliOlD    TEST.  265 

Dickinson  :  "  What  is  his  full  name  ?  " 

Witness  :  "  I  don't  know." 

Dickinson :  "  Is  it  the  name  of  the  inventor 
of  this  test  ?  " 

Witness:  "Yes." 

Dickinson :  "  Where  does  he  live  ?  " 

Witness  :  "  I  don't  know." 

Dickinson :  "  Is  he  English,  Irish,  Swede,  or 
Dane?" 

Witness  :  "  Some  foreigner." 

Here  the  witness  seemed  to  be  getting  out  of 
his  depth,  and  looked  pale. 

Judge  :  "  Woidd  you  like  a  chair  ?  " 

Witness  :  "  N-n-no,  your  honor." 

Judge  :  "  Would  you  like  this  examination 
suspended  ?  " 

Witness  :  "  Y-y-yes,  your  honor,  yes,  sir." 

It  turned  out  that  it  was  a  test  called  the 
Romberg  test,  the  latter  being  a  professor  in 
Berlin. 

In  the  case  of  the  Commonwealth  vs.  Mead 
for  manslaughter,  the  following  colloquy  took 
place  between  Mr.  Durant,  District  Attorney 
Cooley,  and  Mr.  Choate.  Mr.  Durant  said : 
"  May  it  please  your  honor,  the  attorney  for  the 
Commonwealth  took  the  oj)portunity  this  morn- 
ing, when  I  could  not  reply,  to  make  an  attack 
upon  my  professional  character  in  the  manage- 


2G6  JN  RE-TORT. 

ment  of  this  case,  which  he  would  not  have 
dared  to  make  if  I  could  have  had  the  oppor- 
tunity to  answer  him.  I  felt  that  this  court 
room  was  no  place  for  a  personal  altercation, 
and  I  knew  that  I  could  bide  my  time.  I  have 
taken  the  first  opportunity  at  the  recess  to  meet 
him  personally,  and  to  tell  him  that  his  state- 
ments were  false,  and  that  his  charges  were 
cowardly,  and  I  now  say  that  he  dared  not 
resent  in  private  what  I  told  him  to  his  face. 
I  repeat  here,  in  the  presence  of  the  Court  and 
of  the  jury  who  heard  him,  that  he  would  never 
have  dared  to  make  these  charges  in  public 
where  I  could  reply,  nor  in  private  where  they 
could  be  resented.  His  courage  as  an  advocate 
rises  only  when  there  is  no  one  to  answer  him  ; 
his  courage  as  a  man  deserts  him  when  he  is 
deprived  of  the  protection  of  the  Court ;  I  re- 
peat in  public  what  he  has  before  heard  from 
me  in  private,  that  he  is  false  and  cowardly." 

Mr.  Cooley :  "I  hardly  think,  may  it  please 
your  honor,  that  such  a  speech  as  that  just 
made  needs  a  reply.  As  to  my  conduct  here  I 
have  nothing  to  sa3\  As  to  my  courage  to  re- 
ply in  any  other  place,  he  will  find  it  when  I 
have  opportunity  to  show  it." 

Durant :  "  You  have  had  the  opportunity  and 
dared  not  resent  it." 

Mr.  Cooley  continued  his  address  to  the  jury, 


STERNHOLD   AND   HOPKINS.  267 

saying  in  passing  that  to  Mr.  Choate's  language 
he  made  no  exception  and  never  had  occasion 
to  ;  but  to  that  of  his  associate  (Durant)  he 
held  other  views  and  had  expressed  them. 

Choate.  (with  great  earnestness) :  "  I  think 
I  ought  to  say  here  that  in  my  judgment  Mr. 
Durant  said  nothing  that  should  have  led  to 
your  reply." 

Cooley :  "  I  thought  the  reply  was  just,  and 
many  others  have  told  me  their  gratification 
at  hearing  my  remarks." 

Durant  to  Cooley :  "  I  don't  believe  a  word 
of  it." 

Mr.  Durant,  speaking  of  a  certain  paper  in  a 
case,  said :  "  Now,  gentlemen  of  the  jury,  the 
defendant  over  his  own  hand  "  —  here  the  op- 
posing counsel  said  (^sotto  voce%  "  Under  his 
hand."  "Yes,"  said  Mr.  Durant,  '''■under  his 
hand ;  there  has  been  a  good  deal  of  underhand 
work  in  this  case." 

Mr.  Durant  once  quoted  some  verses  from 
Sternhold  and  Hopkins  as  applicable  to  an  in- 
surance company.  While  he  was  reading  the 
by-laws  of  the  company  he  said :  "  It  is  very 
difficult  to  read  it,  it  is  in  such  despicably  fine 
print." 

General  Butler :  "  It  is  larger  print  than  my 
edition  of  Sternhold  and  Hopkins." 


268  IN  RE-TORT. 

Durant :  "  You  had  better  read  them ;  you 
will  find  some  good  things  there." 

Butler  (sarcastically)  :  "  Psalms  ?  " 

Durant :  "  Yes,  sir,  psalms  of  David  ;  while 
these  are  psalms  of  the  devil,  —  a  different  char- 
acter." 

General  Butler,  in  a  closing  argument  to  the 
Court,  said  (referring  to  the  opposite  counsel)  : 
"They  are  trying  the  case  like  pirates."  Mr. 
Durant  replied  :    "  And  against  pirates." 

In  the  celebrated  case  of  Burlen  vs.  Shannon, 
Mr.  Durant  was  for  the  plaintiff,  and  General 
Butler  for  the  defense.  After  a  long  discussion 
of  some  jjoint  of  law,  General  Butler  said  :  "  All 
that  I  am  sorry  for  is  that  I  ever  indorsed  my 
brother  Durant  over  to  the  Court."  Mr.  Du- 
rant (for  whose  admission  to  the  bar  General 
Butler  moved,  and  who  had  been  a  student  in 
his  office)  replied  :  "  All  I  am  surprised  at  is 
that  the  Court  ever  took  brother  Butler's  in- 
dorsement." 

In  this  case  Caroline  Burlen  was  a  sister  to 
the  wife  of  the  defendant,  and  Mr.  Durant 
wanted  to  prove  that  a  certain  party  was  at  the 
sister's-in-law.  "  What,"  said  General  Butler, 
"  sisters  in  law  ?  "  "  Excuse  me,"  said  Mr.  Du- 
rant, "  I  meant  at  the  sister's,  though  it  was  a 
pardonable  mistake,  as  the  sisters  have  been  in 
law  for  the  last  ten  years."     Upon  which  Gen- 


A   LITERAL    INTERPRETATION.  209 

eral  Butler  said  to  Mr.  Durant :  "  Yon  practiced 
that  joke  before  a  glass  this  morning."  Mr. 
Durant  rejoined :  "  I  am  not  in  the  habit  of 
practicing  before  a  glass,  nor  of  taking  a  glass 
before  I  practice." 

I  was  in  Mr.  D.'s  office  one  afternoon,  when 
a  client  came  in  for  advice,  and  said  he  hired 

a  horse  of  a  stable-keeper  to  go  to ,  for  a 

dollar,  but  when  he  returned  the  stable-keeper 
wanted  a  dollar  more.  "  What  for  ?  "  said  the 
client.  "  For  coming  back,"  said  the  stable- 
keeper.  D.  gave  him  some  instructions,  and 
the  client  went  to  the  same  stable-keeper  and 
asked  him  :  "•  How  much  do  you  ask  for  a  horse 
and  wagon  to  go  to  Salem  ?  "  "  Five  dollars," 
said  the  stable-keeper.  The  client  took  the 
horse  and  wagon,  went  to  Salem,  and  came  back 
in  the  cars,  paying  the  stable-keeper  five  dol- 
lars. The  latter  asked,  "  Where  's  my  horse  and 
wagon  ?  "  "  At  Salem,"  said  the  client.  "  What 
did  you  leave  them  there  for ? "  "I  only  hired 
them  to  go  to  Salem." 

James  Lloyd  English,  who  died  in  February, 
1883,  was  an  old-fashioned,  distinguished  lawyer, 
who  had  been  offered  a  seat  on  the  bench.  One 
of  the  good  things  of  this  life  that  he  liked  was 
a  horse.     He  was  highly  scrupulous  as  to  honor 


270  IN  RE-TORT. 

and  integrity  in  practice.  He  told  me  once 
that  lie  had  a  case  given  to  liiui  which  the 
more  he  investigated  the  less  he  wished  to  try. 
He  told  his  client  he  was  going  away  about  the 
time  it  would  he  tried,  and  he  would  give  it  to 
a  lawyer  who  would  try  it  much  better  than  he 
could.     He  gave  the  names   of    the  parties   to 

Mr.  ,  and    said   to   him,  "I    will   tell   you 

about  it  later ;  I  can't  stop  now."  Some  time 
before  the  expected  trial,  he  called  upon  Mr. 

and  said  he  had  come  to  tell  him  the  facts 

in  the  case  of vs. .     Said  the  lawyer 

to  Mr.  English :   "  D the  facts ;  what  will 

they  swear  to  ?  " 

Augustus  H.  Fiske,  who  had  an  office  at  No. 
5  Court  Street,  was  the  best-equipped  lawyer  in 
matters  of  practice  that  I  have  ever  known.  Al- 
though he  would  enter  from  thirty  to  forty 
actions  every  term,  he  would  not  average  more 
than  one  or  two  trials  a  term.  At  this  time  it 
was  the  practice  of  the  lawyers  to  enter  their 
own  appearances  on  the  docket.  Mr.  Fiske 
said  to  me,  "  Willard,  what  time  do  you  get  to 
your  office?  "  I  said,  "  About  eight  o'clock,  and 
work  an  hour  before  the  office  is  open."  He 
said,  "  That  suits  me  exactly ;  call  round  at 
my  office  and  I  will  go  with  you  and  write  in 
my   appearances,  and   I   will   not   trouble   you 


ARRESTING    THE   BODY.  271 

again  for  a  week."  lie  never  liad  to  examine 
our  dockets  to  find  the  number  of  his  case,  but 
always  brought  in  his  own  docket  and  called 
for  any  paper  or  writ  or  execution  from  his  own 
minutes.  Being  upon  the  witness  stand  one 
day,  he  was  asked  how  long  he  had  been  in 
practice,  which  he  answered ;  and  then  the 
question  was  put  to  him  :  "  Plow  long  shall  you 
continue  to  practice?"  "Till  I  die,"  said  Mr. 
Fiske. 

He  was  an  indefatigable  worker,  went  to  his 
office  at  eioht  o'clock,  and  did  not  leave  until 
dusk.  He  was  so  intolerant  of  affectation  that 
he  erred  slightly  toward  brusqueness.  As  he 
came  into  court  one  morning,  he  found  Mr. 
Willey  sitting  at  the  table  looking  extremely 
nice,  his  wig  smooth  and  well  adjusted.  Fiske, 
who  was  as  bald  as  Willey  but  wore  no  wig, 
put  his  hand  on  Willey's  head  and  said :  "  Wil- 
ley, what  do  you  wear  such  a  d d-looking 

thing  as  that  for  ?  " 

Asahel  Huntington  was  clerk  of  the  courts  of 
Essex  County.  Shortly  after  the  passage  of  the 
Practice  Act  of  1852,  I  then  being  assistant 
clerk,  he  called  and  wanted  to  know  what  the 
clerk  had  decided  as  to  executions  retaining  the 
clause  about  arresting  the  body.  Mr.  Hunting- 
ton was  a  very  sententious  man.     I  replied,  I 


272  IX   RE-TORT. 

had  had  no  conversation  Avith  tlie  clerk,  but 
that  tlie  statute  said  that  after  certain  conditions 
had  been  complied  with,  then  the  execution  may 
be  solved  by  arrest  of  defendant's  body.  If  the 
body  clause  is  not  retained,  how  can  it  be  served 
by  arrest  of  defendant's  body.  "  A  good  sug- 
gestion, sir,"  he  said  in  his  emphatic  way,  and 
walked  off. 

He  was  at  one  time  district  attorney  in  Essex, 
and  a  terror  to  rumsellers ;  he  had  certain  stere- 
otyped questions  which  he  put  to  his  witnesses. 

He  would  say  to  a  witness :  "  You  went  to 

saloon  ?  "  "  Yes,  sir."  "  Drink  there  ?  "  "  Yes, 
sir."  "What  was  it?"  "Don't  know,  sir." 
"  Did  it  looh  like  rum  ?  "  "  Yes,  sir."  "  Did 
it  smell  like  rum  ?  "  "  Yes,  sir."  "  Did  it  taste 
like  rum  ?  "  "  Yes,  sir."  Then  in  his  argument 
to  the  jury  he  would  say,  "  The  witness  says  it 
looked  like  rum,  smelt  like  rum,  tasted  like  rum ; 
H  VMS  rum." 

He  went  to  the  Whig  convention,  the  last  one 
that  was  ever  held,  and  where  the  breaking  up 
of  the  Whig  party  was  foreshadowed.  When 
he  came  home  he  made  a  speech  to  his  constitu- 
ents to  explain  matters,  and  to  give  some  ac- 
count of  the  proceedings.  He  said ;  "  Now  who 
were  these  men  ?  They  looked  like  Whigs,  acted 
like  Whigs,  ivere  Whigs."  Voice  in  the  crowd : 
"  What  did  they  smell  like  ?  " 


A    WELL-KNOWN    QUOTATION.  273 

Judge  Merrick,  who  died  in  1867,  soon  after 
leaving'  the  Lenoh  of  the  Court  of  Common 
Pleas,  —  to  which  he  was  appointed  in  1850,  and 
to  the  Supreme  Judicial  Court  in  1853,  —  was 
associate  counsel  with  A.  H.  Fiske  on  a  case. 
He  said  to  Mr.  Fiske :  "  I  don't  know  but  I  've 
forgotten  how  to  argue  a  case,  it  is  so  long  since 
I  was  at  the  bar."  "  You  must  have  forgotten 
very  lately,"  said  Mr.  Fiske,  "  for  you  used  to 
argue  very  well  when  you  were  on  the  bench." 

When  the  Whig  party  was  demoralized  by 
the  success  of  Know-Nothingism  in  1855,  George 
F.  Farley  of  Groton  said  that  he  could  with  good 
conscience  make  his  affidavit  that  the  Whig 
party  was  about  to  depart  without  the  Common- 
wealth. 

A  certain  lawyer  said  to  a  jury,  "  Gentlemen, 
character  is  more  than  wealth  ;  I  would  rather 
leave  a  reputation  than  money  to  my  children." 
Mr.  Farley  remarked  :  "  If  that  is  all  he  leaves 
his  family,  it  will  be  a  mere  pittance." 

Mr.  P.  J.  Flatley  was  trying  a  cause  before  a 
justice  in  a  neighboring  city,  and  on  the  discus- 
sion of  some  proposition,  the  justice  requested 
Mr.  Flatley  to  state  its  application.  Mr.  Flat- 
ley  said  that  he  thought  the  well-known  quo- 
tation,   "  Colleen   dhus   cruten   un    bhe   angus 


274  IN  RE-TORT. 

annam  un  clhiel "  (Irish)  from  Horace  would 
apply,  at  which  the  judge,  profoundly  bowing-  as 
though  recognizing  the  quotation,  replied,  "  Ah, 
yes." 

Mr.  Gargan,  interrogating  a  witness  :  "  AA^hat 
was  your  condition  that  day?"  Witness:  "Very 
good."  Mr.  G. :  "Had  you  been  drinking?" 
Witness :  "I  had  had  one  glass  of  whiskey." 
Mr.  G. :  "  Had  n't  you  had  any  more  ?  "  Wit- 
ness :  "  That 's  my  business."  Mr.  G. :  "  Have 
you  any  other  business  ? "  Witness  did  not 
answer. 

Mr.  Gargan,  whose  tones  were  usually  sten- 
torian,^ was  examining  a  witness  of  small  per- 
son and  meek,  humble  demeanor,  when  he  was 
thus  reprimanded  by  Judge  Pitman  :  "  Mr.  Gar- 
gan, there  is  too  much  of  you  and  too  little  of 
the  witness." 

Mr.  Gaston,  cross-examining  a  witness :  "  Can 
you  read  ?  "  Witness  :  "  No,  but  I  know  num- 
bers." Mr.  Gaston:  "You  say  there  was  a  3 
on  this  paper?"  Witness:  "Yes,  sir."  Mr. 
Gaston  :  "  What  does  3  mean  ?  "  Witness  : 
"  If  you  put  another  3  with  it,  it  is  33." 

1  It  was  an  ancestral  peculiarity,  a  clear  case  of  heredity ; 
for  Horace  says,  "  Garganum  mugire  putes." 

Horace,  Epist.  11.  1. 202. 


ON  BIG    OCCASIONS.  275 

"  Did  n't  you  advise  her  to  put  on  lamb's 
wool  ?  "  "  No."  "  What  would  you  apply  lamb's 
wool  to  ?  "  "  To  your  back  if  you  had  a  pain 
in  it."     "  Did  you  say  you  heard  a  noise,  and 

thoug-ht   the  whole    d d    thino:  was   cominjj 

down ? "  "I  never  curse."  " You  have  been  to 
sea ;  did  n't  you  curse  then  ?  Did  you  say 
d n ? "     "I  might  on  big  occasions." 

J.  Q.  A.  Griffin  was  an  able  man,  and  now 
and  then  fond  of  a  sarcasm  at  the  expense  of  his 
client.  A  friend  of  mine  and  of  his  writes  me 
of  him  thus  :  He  was  of  about  medium  height, 
stooped  a  little,  and  was  slim,  although  not  ap- 
parently so  because  of  his  massive  head.  Above 
his  gold-bowed  spectacles  arose  a  square  per- 
pendicular forehead,  from  which  his  dark  hair 
stood  up,  straight  and  thick.  He  was  subject 
to  frequent  attacks  of  asthma.  Pie  was  neither 
elegant  nor  classical,  but  his  mind  was  quick  and 
strong.  He  was  a  ready,  entertaining  speaker, 
carrying  juries  with  him  by  his  clear  logic  and 
by  his  keen  if  not  brilliant  wit  and  great  sar- 
casm. These  he  must  indulge  in,  on  all  occa- 
sions, even  at  the  sure  sacrifice  of  verdict  or 
friend.  But  he  was  a  wily,  dangerous  adver- 
sary at  the  bar,  though  not  wanting  in  kindness 
of  heart.  "  He  'd  be  damned  if  he  'd  ever  wear 
a  black  silk  hat."     I  heard  the  foUowins:  con- 


276  IN  RE-TORT. 

versation  carried  on  by  him  and  another  attorney 
sotto  voce,  between  the  interrogations  addressed 
to  the  witness.     G. :  "  What  do  you   ask  him 

that  for,  you  d fool  ?  "     "  My  father  was  a 

1-lawyer,  and  I  was  r-rocked  in  the  c-cradle  of 
the  law."  G.  :  "  Yes,  but  you  have  n't  got  your 
swaddling-clothes  off  yet." 

Griffin  took  the  office  of  clerk  of  courts  for 
Middlesex,  but  it  had  not  the  excitement  of  the 
forum,  and  he  was  like  a  bound  gladiator.  He 
sent  for  me  once,  and  among  other  things  (this 
was  after  I  was  appointed  assistant  clerk)  said  : 
"  Willard,  resign,  and  I  '11  use  my  influence  to 
get  you  appointed  here."  I  told  him  that  I 
would  rather  be  in  Boston.  He  went  to  Cuba 
for  his  health,  and  after  he  returned  asked  me 
to  come  up  and  see  him  some  Sunday  at  his 
house  in  Medfoi'd.  I  went  and  had  a  pleasant 
conversation  with  him,  although  I  saw  the  sands 
of  life  were  nearly  run  out.  As  I  left,  he  gave 
me  some  cigars,  saying :  "  Here,  Willard,  take 
these ;  I  bought  them  on  the  Rialto.  Remem- 
ber me  as  you  waste  the  smoke  in  the  air." 

His  will  was  so  singular,  I  give  it  in  full :  — 

"  I,  J.  Q.  A.  Griffin,  being  of  sound  mind  and 
memory,  but  of  faltering  and  somewhat  uncer- 
tain health,  and  conscious  of  the  entire  certainty 
of  death  and  that  it  often  comes  with  no  herald 


A    SINGULAR    WILL.  277 

announcing  its  approach,  but  with  stealthy  tread, 
make  this  my  List  will. 

"  First :  I  make  no  provision  as  to  the  funeral 
rites,  knowing-  that  in  a  Christian  community 
everything  will  be  done  that  ought  to  be  done 
in  that  regard. 

"  Second :  But  as  I  have  a  horror  of  burials 
alive,  I  desire  that  my  body  after  death  may  be 
kept  a  reasonable  time  before  interment,  and 
that  it  be  for  a  time  at  least  committed  to  a 
tomb  before  its  burial  in  the  earth. 

"  Third :  If  consistent  with  the  feelings  of  my 
wife  and  family,  as  it  might  lead  to  results  that 
would  mitigate  the  pangs  of  others  on  their  way 
to  '  dusty  death '  who  are  suffering  from  dis- 
eases kindred  to  my  own,  I  desire  that  there 
may  be  an  examination  of  my  body  in  the  pre- 
sence of  skillful  and  experienced  physicians,  of 
both  the  allopathic  and  homoeopathic  schools.  I 
have  suffered  largely,  and  perhaps  the  cause 
thereof  might  be  discovered,  but  I  am  now  satis- 
fied that,  though  I  have  suffered  many  things 
of  many  physicians,  no  one  of  them  had  any 
real  knowledge  of  the  disease  or  the  best  means 
of  curing  or  relieving  it.  But  if  such  an  ex- 
amination should  be  distasteful  to  my  wife  and 
family,  let  it  be  omitted,  as  I  owe  more  to  them 
than  to  general  posterity. 

"  Fourth :  All  my  personal  estate  that  costs 


278  IX   RE-TORT. 

money  to  preserve  and  keep,  such  as  horses,  cows, 
or  other  articles,  and  all  such  as  are  useless  if 
kept,  I  desire  may  be  sold  by  my  executor  as 
speedily  as  can  be  most  profitably  done  after  my 
decease.  But  let  my  beasts  be  sold  to  kind  and 
good  masters. 

"  Fifth  :  In  the  settlement  of  the  debts  I  owe, 
let  great  caution  and  care  be  exercised,  particu- 
larly in  i-espect  to  the  bills  of  deputy  sheriffs 
and  constables  whose  charges  are  often  most 
exorbitant,  and  not  unfrequently  made  to  me, 
when  I  have  distinctly  marked  the  processes 
committed  to  them  in  such  a  manner  as  to  notify 
them  that  I  would  not  be  responsible  for  officers' 
fees. 

"  Sixth  :  In  the  settlement  of  the  debts  due  to 
me,  let  great  care  also  be  observed ;  large  sums 
are  now  due  me.  I  have  been  remiss  in  their 
collection.  I  have  left  debts  uncollected  that 
ought  to  have  been  pressed.  [Here  he  names  two 
individuals  and  two  business  firms  who  should  be 
pressed  for  payment.] 

"  Seventh :  All  my  property,  real  and  per- 
sonal, I  give  and  devise  to  my  wife  during  her 
life,  provided  she  remain  unmarried  after  my  de- 
cease. But  if  she  marry  again,  I  give  and  devise 
the  same  to  my  children  who  then  may  be  living, 
their  title  to  accrue  immediately  on  Sarah's 
marriage,  and  hers  to  be  divested  therefrom. 


A   SINGULAR    WILL.  279 

"  Eighth  :  My  wife  is  a  most  amiable  woman. 
She  has  made  my  life  happy,  and  been  true  in 
all  respects  to  her  position  as  a  wife  and  mother. 
It  is  my  wish  that  she  may  not  marry  again.  I 
would  more  strongly  enforce  this  wish  did  I  not 
feel  that  she  will  respect  it  upon  the  suggestion. 

"  Ninth :  Upon  the  decease  of  my  wife,  in  the 
event  of  her  not  marrying  again  after  my  de- 
cease, my  will  is  that  the  property  she  has 
remaining  may  be  equally  divided  between  my 
children  then  living. 

"Tenth:  Women  are  not  adequate  to  the 
management  of  most  property  or  even  a  little 
in  this  community  in  the  best  way.  It  is  there- 
fore my  will  that  the  trustee  and  executor  here- 
inafter named,  or  his  successor,  shall  have  the 
care,  management,  control,  and  disbursement 
thereof  during  the  life  of  my  said  wife,  or  her 
interest  in  said  property,  and  until  my  children 
are  twenty-one  years  of  age. 

"  Eleventh  :  I  would  make  the  suggestion  here 
that  it  would  be  best  after  my  decease,  as  soon  as 
it  could  best  be  done,  to  sell  and  dispose  of  my 
property,  convert  the  same  into  cash,  safely  in- 
vest the  same  in  mortgages  in  real  estate,  and 
there  let  it  remain,  provided  the  interest  be 
promptly  paid.  And  I  think  it  would  be  better 
for  my  wife  and  children  to  remove  very  soon  to 
Concord  into  a  modest   but  comfortable  house 


280  IN  RE-TORT. 

which  may  be  either  hired  or  bought  for  their 
use.  It  is  a  better  location  for  the  education  of 
the  chiklren,  intellectually  and  morally,  than 
Maiden  or  Charlestown. 

"  Twelfth :  It  is  my  will  that  Timothy  T.  Saw- 
yer may  act  as  executor  and  trustee  under  this 
will.  The  estate  is  small  and  needs  an  honest 
hand  in  the  management.  My  children  are  many 
and  their  wants  will  be  many.  Mr.  Sawyer  is 
one  of  the  few  able  men  whom  I  have  found  to 
be  rigidly  upright  and  honest.  In  the  event  of 
his  decease  at  any  time,  let  Edward  Lawrence 
be  his  successor,  —  a  man  equally  trustworthy. 
And  if  any  executor  or  trustee  be  needed  after 
his  decease  or  incapacity,  let  the  Judge  of  Pro- 
bate select  the  fittest  and  most  honest  man  he 
knows. 

"  Thirteenth :  I  commend  to  the  care  of  my 
wife,  my  aged  mother.  Let  her  suffer  for 
nothing,  nor  want ;  she  cannot  long  survive  me. 
Let  her  declining  days  be  made  as  pleasant  as 
possible,  under  the  unhappy  circumstances  that 
attend  her. 

"  Fourteenth  :  Let  my  children  be  well  cared 
for.  Teach  them  to  avoid  frivolity,  —  that  "  Life 
is  real,  life  is  earnest !  "  Let  them  have  the 
best  education  within  their  power  to  attain. 
Let  one  be  a  lawyer,  if  he  have  capacity  for  that 
profession.     Be   careful  and   vigilant   of   their 


A    PAIR    OF  PAXTS.  281 

morals.  Considering  the  wickedness  that  every- 
where exists,  too  great  care  cannot  be  exercised 
in  that  regard.  But  I  need  not  be  solicitous. 
My  wife  has  all  the  wisdom  necessary  to  their 
care.  No  children  ever  had  a  better  mother 
than  they.  Xo  man  ever  had  a  better  wife  than 
I.  I  commend  her  and  the  children  to  the  re- 
spect and  the  consideration  of  the  community 
in  which  I  leave  them." 

The  will  bears  the  date  of  October  4,  1858. 
The  witnesses  were  Charles  A.  Barker,  A.  W. 
Boardman,  and  Joseph  Jackson. 

Griffin  once  told  me  how  he  got  a  man  ac- 
quitted who  was  indicted  for  larceny.  The  in- 
dictment read :  "  Stealing  a  pair  of  pants." 
Mr.  Griffin  objected  to  the  indictment  on  the 
ground  that  a  "  pant "  was  a  short  breath  and 
not  the  subject  of  larceny,  and  that  therefore  a 
''  pair  of  short  breaths  "  could  not  be  the  subject 
of  larceny.  The  Court  so  ruled,  and  his  client 
was  discharged. 

At  one  term  in  the  Court  of  Common  Pleas, 
William  Hayden,  editor  of  the  "  Boston  Atlas," 
was  foreman  of  the  first  jury.  The  second  jury 
were  engaged  in  trying  a  case  in  which  about 
ten  dollars  were  involved  as  to  the  price  of  a  set 
of  felloes  and  tires.    Chief  Justice  AVells  kept  the 


282  7.V   RE-TORT. 

other  jury  in  all  the  forenoon,  hoping  every  mo- 
ment that  the  case  would  be  finished,  but  Maine 
and  Morris  fought  as  though  there  were  millions 
in  it.    Mr.  Hayden  addressed  me  these  lines :  — 

"  Morris  and  Maine,  two  lawyers  shrewd, 

Tliougli  they  themselves  may  like  the  sport, 
Talking-  of  felloes  and  of  tires. 
Tire  all  the  fellows  in  the  court." 

On  another  occasion  a  complaint  under  chap- 
ter 49  of  the  Revised  Statutes  was  being  tried, 
when  he  gave  me  these  lines,  —  Griffin  and 
Maine  were  the  two  counsel :  — 

"  Poor,  fatherless  bahe,  while  you  are  here  crying, 

Important  inquiries  around  you  revolve  ; 
The  jury  to  find  you  a  father  are  trying-, 

A  point  which  the  mother  herself  can  scarce  solve. 
Never  mind,  never  mind,  you  are  here  upon  earth, 

They  can't  get  you  back  where  you  came  from  again, 
You  are  here  upon  earth,  in  spite  of  your  birth, 

Surviving  the  efforts  of  Griffin  and  Maine." 

Mr.  B.  F.  Hallett  was  a  very  searching  cross- 
examiner,  and  he  once  cross-examined  Rev. 
Thomas  Whittemore  at  great  length.  When  he 
had  finished  he  said,  "  Mr.  Whittemore,  I  have 
made  this  long  and  searching  examination  as 
a  duty  to  my  client,  and  not  for  the  purpose 
of  worrying  you,  for  I  have  the  utmost  respect 
for  you."  Mr.  Whittemore,  with  one  of  his 
blandest  smiles,  replied,  "  I  wish  I  could  say 
the  same  for  you,  Mr.  Hallett." 


A    FAST    TALKER.  283 

In  walking  into  Boston,  wliicli  I  always  did 
in  former  years,  I  occasionally  met  Mr.  Whitte- 
more,  and  he  told  me  this  :  lie  was  chosen  Presi- 
dent of  the  Fitchburg  Railroad,  and,  wishing  to 
know  all  the  local  business  situations  of  the 
road,  walked  the  whole  length  of  it  in  Massa- 
chusetts. At  one  place  ho  saw  some  laborers 
unloading  a  car  containing  iron  rails,  which 
he  thought  they  handled  rather  carelessly.  He 
said  to  them,  "  Men,  I  would  be  a  little  more 
careful  in  handling  those  rails."  "  To  h — 1 
wid  yez,"  said  one  of  the  men.  "  Ah,"  he  said, 
"  that 's  the  last  place  I  should  wish  to  go  to." 
"  Faix,"  said  the  man,  "  and  that 's  the  last 
place  ye  will  go  to."  He  related  this  to  me 
with  a  good  deal  of  gusto.  He  had  previously 
been  settled  as  a  Universalist  minister  at  Cam- 
bridgeport. 

Mr.  B.  F.  Hallett  was  trying  a  case  before 
Judge  Gushing  for  slander.  His  principal  wit- 
ness was  an  Irishwoman,  who  was  very  impetu- 
ous ;  she  talked  so  fast  that  Judge  Gushing 
could  not  write  down  her  testimony,  and  at- 
tempted in  vain  to  stop  her.  Still  she  went 
on,  and  Judge  Gushing  shouted,  "  Old  woman, 
shut  up."  But  it  was  useless.  At  last  he 
threw  down  his  pen,  exhausted,  and  cried  out, 
"  There,  Mr.  Hallett,  you  set  her  going,  now 
stop  her." 


284  /X   RE-TORT. 

Mr.  Hallett  asked  a  witness  how  he  knew 
that  a  certain  conversation  was  on  such  a  day. 
"  Because  your  client  came  to  me  and  said, 
'  You  know  I  voted  for  Buclianan.'  "  Mr. 
Hallett  turned  to  the  jury  and  said,  "  That  \s  a 
good  reason  why  my  client  shoidd  have  large 
damages." 

Mr.  Healy  told  me  that  Judge ,  in  travel- 
ing one  summer,  arrived  at  a  hotel  which  was 
full  of  guests,  and  was  put  in  a  small  room 
with  an  Irishman.  Being  somewhat  annoyed  at 
this,  he  said,  "  Well,  Pat,  you  would  have 
lived  a  long  time  in  the  old  country  before  you 
would  have  slept  in  the  same  room  with  a 
judge."  "  Yes,"  said  Pat,  "  and  you  would 
have  lived  a  long  time  in  the  old  country  before 
you  would  have  been  a  judge." 

He  also  told  me  that  in  New  Hampshire  at 
one  time  there  were  three  commissioners  ap- 
pointed to  examine  candidates  for  admission  to 
the  bar,  —  Mr.  Jeremiah  Mason,  Mr. Sulli- 
van, and  one  other  whose  name  I  have  forgotten. 
A  young  man  of  very  awkward  appearance  pre- 
sented himself  for  examination  one  day,  and  they 
proceeded  to  examine  him  thus :  "  What  is 
property  ?  "  He  described  it.  "  How  is  it  ac- 
quired ?  "  "  In  various  ways."  "  Illustrate." 
"  Mr.  Mason  gets  his  by  high  fees,  Mr.  Sullivan 


NUMBER  4   COURT   STREET.  285 

by  usury,  and  Mr."  —  "  Stop  I  stop !  "  said 
jNIr.  Mason  ;  "  I  think  we  can  admit  him,  brother 
Sidlivan." 

At  No.  4  Court  Street  many  distinguished 
lawyers  had  their  offices.  I  copy  here  a  slip 
which  was  pasted  on  the  outer  door :  — 

"  In  1837,  here  were  found  Rufus  Choate  and 
F.  B.  Crowninshield  (partners),  Charles  Sum- 
ner and  George  S.  Hillard  (partners),  Theophi- 
lus  Parsons  and  William  G.  Stevens,  Horace 
Mann,  Edward  G.  Loring,  Benjamin  Guild, 
Luther  S.  Cushing,  John  O.  Sargent,  P.  W. 
Chandler,  John  Codman,  T.  P.  Chandler,  John 
A.  Andrew,  and  others."  When  Mr.  George 
S.  Hillard  left  the  building  in  1856,  he  bade 
farewell  to  No.  4  in  these  graceful  lines :  — 

"  The  child  that  in  the  cradle  slept, 
When  first  upon  the  stairs  I  stepped, 
Now  strongly  stalks  across  the  land, 
With  beard  on  chin  and  vote  in  hand. 

"  And  I  have  passed  from  summer's  prime 
To  autumn's  sober  shadowy  time, 
And  felt  the  throbs  and  known  the  strife, 
That  slowly  rear  the  dome  of  life. 

"  I  hear  no  more  the  well-known  feet. 
The  kindly  looks  no  more  I  greet ; 
But  ere  I  part  from  number  four, 
I  leave  my  blessings  at  the  door." 


286  IN  RE-TORT. 

George  S.  Ilillard,  who  was  the  daintiest  and 
most  suave  of  men,  was  trying  a  case  in  which 
the  opposing  counsel  sought  to  recover  for  ser- 
vices in  exhibiting  a  panorama,  when  the  follow- 
ing occurred  :  — 

Mr.  Hillard  :  "  How  long  a  time  does  it  take 
to  unroll  a  panorama?  " 

Witness  (the  owner)  :  "  That  depends  upon 
the  audience." 

Hillard  :  "  What  do  you  pay  a  man  per  night 
to  turn  the  panorama  ?  " 

Witness  :  "  Ten  dollars  or  fifteen  dollars." 

Hillard  :  "  Seems  to  me  that  is  pretty  high  ; 
I  think  /  should  like  to  work  for  that." 

Witness :  "  Well,  the  next  time  I  have  a  pano- 
rama I  '11  hire  yer." 

A  year  or  two  before  Mr.  Hillard's  death,  I 
was  called  by  him  to  his  house  to  attend  to  some 
private  business,  after  which  in  conversation  I 
quoted  from  memory  some  lines  from  an  address 
that  he  had  delivered  before  the  alumni  of 
Harvard  more  than  twenty  years  previously,  and 
which  I  had  not  seen  since.  He  was  surprised 
at  my  memory,  and  at  my  request  wrote  the 
whole  of  it,  and  sent  it  to  me :  — 

"  Est  oculis  credendum,  what  sights  my  old  eyes  greet, 
My  soboles  carissimce,  all  gathered  at  my  feet ! 
Senes,  with  their  locks   of  snow,  and  juvenes  all  blooming, 
Thrice   welcome   is   this  dies   blest,   and   doubly   bright  its 
lumen  ! 


A   MACARONIC  POEM.  287 

"  Cum  osculis  maternis,  I  fold  you  to  my  breast ; 
Quot  anni  sunt  elapsi,  since  yoii  left  my  sheltering  nest! 
Auditis,  how  I  tessellate  my  speech  with  bits  of  Latin, 
Although  sub  rosa  be  it  said,  my  English  comes  more  pat  in. 

"  And  now  that  meijilii  are  met  around  my  board, 

Favete  Unguis,   for  a  moment,   hear  your  mother   speak  a 

word. 
Receive  arrectis  auribus  my  loving  heart's  consilia, 
And  though  I  'm  senex  growing,  don't  think  my  teaching  's 
sillier. 

"  You,  Prceses  reverende,  and  you,  my  Professores, 
In  whose  honored  capita  all  kinds  of  learned  lore  is. 
Take  good  care  of  my  pueri,  keep  the  youthful  corda  sound, 
And  water  the  virgulta,  with  streams  from  classic  ground. 

"  Let  a  gentle  mansuetudo  ever  temper  your  rebuke, 
Sunt  qucedam.  dulcia  vitia,  which  wise  men  overlook. 
The  rank  weeds  of  juventus  will  sponte  sua  die  ofiP, 
And  if  you  screw  the  screws  too  hard,  the  capita  will  fly  off. 

"  And  you,  my  learned  clergy,  the  jewel  of  your  mater, 
To  see  you  round  my  side  cor  valde  delectatur. 
Come,  put  about  the  cyathus,  and  don't  be  melancholy, 
For  I  hold  it  no  peccatum  for  a  parson  to  be  jolly. 

"  Eloquio  et  doctrina  I  know  your  honor  great  is, 
And  to  the  people  of  your  charge  vitie  panem  datis, 
Ecclesice  officiis  your  lives  and  strength  are  spent  all, 
Your  merits  are  transcendant,  aliquando,  '  transcendental.' 

"  Your  GrcEca  exemplar ia,  I  pray  you,  don't  neglect, 
For  a  clergyman  indoctum  I  hold  in  no  respect. 
And  pardon  me,  m.j  Jilii,  ii petulans  my  tongue  grows, 
But  do  not  preach,  on  Sundays,  sernwnes  nimis  longos. 


288  /.v  RE-roRT. 

"And  you,  my  legal  brood,  cantorea forimdarum, 
With  whom  honestas  is,  I  fear,  a  thing  too  rarum  ; 
Some  of  you,  if  tales  be  true,  diabolus  liubebit, 
And  if  he  should,  well  and  good,  forsan  nemo  Jiebit. 

"  Let  not  the  honorarium  which  the  lay  gents  call  a  fee 
Make  your  oculos  so  ccecos  that  the  truth  tliey  cannot  see. 
Speak  nitide  et  breviter,  don't  weary  courts  and  jury, 
And  when  you  have  a  Jinis  reached,  stop  talking,  I  conjure 
you. 

"  And  you,  doctores  medicina,  who,  armed  with  pills  and  bolus, 
Stand  by  us  in  extremis,  to  comfort  and  console  us. 
With  whom  the  Britannorum  mos  is  still  in  good  repute. 
For  quidam  slay  in  curribus,  and  quidam  slay  on  foot. 

"  Dum  sumus  validi,  your  doings  are  in  distaste, 

But  when  mors  pidsat  at  our  doors,  we  send  for  you  in  haste ; 

Ofortunatos  nimium  —  your  slumbers  may  be  sound, 

For  all  your  corpora  delicti  are  hidden  under  ground. 

"And  now,  valete  omnes,  my  errand  has  been  sped, 

I  drop  a  benediction  upon  the  general  head. 

Eheu  !  labuntur  anni  —  how  swift  the  years  glide  by, 

But  sursum  corda,  my  beloved  ones,  for  truth  can  never  die." 

Samuel  Hoar,  in  arguing  to  a  jury  on  the 
difference  in  testimony  or  difference  in  state- 
ment on  the  same  testimony  by  honest  witnesses, 
gave  this  illustration  to  a  jury :  A  boy  asked 
his  sister  what  "  amen  "  meant.  She  replied  : 
"  Don't  touch  it."  One  day  the  mother  asked 
the  girl  what  it  meant,  and  she  replied  again  : 
"Don't    touch    it."      The    mother   then    asked 


THE    MEANING    OF   "  A.UEN."  289 

her  where  she  learned  that.  She  said  :  "  Why, 
you  told  me  so  yourself."  "  Oh,  no  ;  I  told  you, 
so  let  it  be." 

Major  J.  A.  Maxwell  favors  me  with  the  fol- 
lowing description  of  John  S.  Holmes,  who  died 
in  1892 :  "  John  S.  Holmes,  lawyer  and  politi- 
cian. A  strong,  unique,  and  interesting  person- 
ality disappeared  from  human  view  and  was 
left  only  to  memory,  when  in  the  early  hours  of 
Saturday  last  John  S.  Holmes  expired  suddenly, 
humbly,  and  resignedly  in  this  city.  That  he 
should  have  ended  his  earthly  days  suddenly  was 
no  wonder  to  his  friends  and  was  expected  by 
himself,  for  he  and  they  had  long  known  that 
his  body  was  the  home  of  a  diseased  heart,  and 
would  soon  become  its  coffin.  In  the  mean  time 
his  mind  remained  clear  and  discerning  of  rea- 
son and  logic ;  his  humor,  though  somewhat 
grim  and  sardonic  rather  than  fanciful  or  mirth- 
ful, remained  true  to  nature  and  struck  the  heart 
of  human  nature,  and  his  heart  turned  straight 
without  any  magnetic  variation  to  those  friends 
of  his  who  greeted  him  with  love  of  his  unu- 
sually strong  and  forceful  qualities,  and  smiled 
without  displeasure  at  his  peculiarities.  That  he 
should  have  died  humbly  and  resignedly  is  more 
remarkable,  for  he  was  a  man  of  rebellious  in- 
stinct of  thought,  a  somewhat  defiant  and  always 


290  IN   RE-TORT. 

aggressive  controversiiillst  in  the  fields  of  theo- 
logy. He  had  sought  those  fields  in  early  days 
as  a  student  at  Andover,  then  left  them,  then 
returned,  and  wandered  about  in  them  to  the  end 
of  his  life.  His  final  ereed  may  be  embraced  in 
the  words  God  and  Conscience.  His  final  at- 
tendants saw  his  dead  yet  speaking  features  and 
now  attest  his  humility  and  resignation.  He 
died  aged  seventy  years.  For  many  consecutive 
years  he  was  sought  by  Democracy  to  represent 
their  views  and  interests.  He  was  also  well 
known  as  a  lawyer,  but  in  late  years,  on  account 
of  heart  trouble,  he  abandoned  the  practice  of 
law  in  the  courts  and  confined  himself  to  the 
trial  of  causes  sent  to  him  as  auditor  in  law  or 
master  in  equity.  He  had  so  many  of  these 
cases  that  he  was  known  as  '  Judge  Holmes,' 
and  at  the  time  of  his  death  had  a  number  of 
these  matters  in  his  death-stricken  hands  and 
brain." 

When  Judge ,  who  was  not  a  very  bril- 
liant man,  died,  some  one  said  to  Holmes  in 
my  office  one  day :  "  Holmes,  I  understand  that 
they  are  going  to  put  up  a  monument  to  Judge 

."     Holmes  replied  that  it  ought  to  be  a 

bas-relief. 

Judge was  holding  court,  and  the  sun- 
light shone  on  the  back  of  his  head.  Holmes 
said  to  me  :  ""  There  is  a  beautiful  illustration 


ANECDOTES    OF  JOHN   S.    HOLMES.        291 

of  scripture."  "  How  's  that  ?  "  said  I.  Holmes 
replied :  "  The  light  shineth  upon  the  darkness, 
and  the  darkness  comprehendeth  it  not." 

Mr.  Holmes  once  told  me  that  he  saw  Thomas 
F.  Maguire  eating  a  breakfast  at  a  restaurant, 
and  said :  "  Good  God  I  Maguire,  what  are  you 
about  ?  "  Said  Maguire  :  "  What 's  the  matter  ?  " 
Said  Holmes :  "  Do  you  know  what  day  this  is  ?  " 
"  No,"  said  Maguire.  Said  Holmes  :  "  Why, 
this  is  Good  Friday  :  you  had  better  stop  eating 
that  steak,  and  put  on  a  layer  of  fish  as  quickly 
as  possible."  Maguire  was  a  staunch  Roman 
Catholic. 

Mr.  Holmes  was  once  discussing  Irish  affairs 
with  a  young  Irish  lawyer  in  my  office,  and  the 
latter,  seeming  somewhat  surprised  at  Holmes's 
remarks,  asked  :  "  Why,  Holmes,  don't  you  want 
the  Irish  to  have  their  freedom  ? "  "  Yes," 
said  Holmes,  "  on  one  condition."  "  What  is 
that  ?  "  "  That  a  wall  is  built  around  Ireland, 
so  high  that  no  one  of  you  can  ever  get  out." 

"  Where  was brought  up  ?  "  said  a  per- 
son to  John  S.  Holmes.  Holmes  :  "  He  came 
up  himself."  The  former  said  to  Holmes  :  "  I 
addressed  ten  thousand  men  in  the  last  campaign, 
John,  for  two  hours."  Holmes  :  "  Are  any  of 
them  alive  now  ?  " 

Among  the  candidates  for  a  vacancy  in  the 
Superior  Court  was  Judge .     Holmes  said 


292  L\  RE-TORT. 

he  tliought  Jiulge ought  to  have  it,  as  he 

had  such  an  eminent  judicial  gait. 

Mr.  Holmes  once  told  General  Butler  that  he 
(Holmes)  was  often  taken  for  General  Butler. 
"  Well,  what  of  it  ?  "  said  Butler.  "  Why,"  said 
Holmes, "  I  am  afraid  you  will  lose  your  reputa- 
tion as  a  lawyer,  and  I  mine  as  a  man." 

A  gentleman  came  into  my  office,  and,  observ- 
ing a  photograph  of  the  clerk  and  four  assistants, 
asked  :  "  Where  can  I  get  one  of  those  pictures  ?  " 
I  said :  "  At  Ritz'."  Mr.  Holmes,  who  stood  by, 
remarked  :  "  Where  else  should  the  clerks  go, 
except  to  Ritz  "  [writs] . 

Mr.  Holmes  was  talking  with  me  about  vari- 
ous articles  of  food.  He  asked  me  what  I  liked 
best  for  breakfast  on  a  cold  morning.  I  told 
him  good  hot  fried  sausages,  and  that  they  were 
a  tonic.  Mr.  Holmes  replied  :  "  Yes,  and  if  it 
is  a  German  sausage,  it  is  Teutonic." 

A  person,  meeting  Mr.  Holmes  in  my  office, 
said  :  "  Good  morning.  Holmes,  how  are  you  ?  " 
"  Well,"  said  Holmes,  "  how  are  you  ?  "  The 
other  replied :  "I  am  very  chilly.  I  feel  the 
goose-flesh  creeping  over  me."  "  Don't  you 
always  ?  "  asked  Holmes. 


VIII. 

IN  RE-TORT.  —  PART  II. 

About  the  time  of  the  breaking  out  of  our 
civil  war,  George  Jones,  alias  Count  Joannes, 
came  to  the  front.  He  had  been  a  second-rate 
actor,  had  been  to  Europe,  and  by  some  means 
acquired  the  title  of  count.  The  first  time  I  re- 
member seeing  him  in  public  was  at  a  meeting 
of  the  bar  called  to  confer  with  the  judiciary 
as  to  whether  the  courts  could  be  held  to  ad- 
vantage during  the  great  excitement.  He  had 
not  at  that  time  made  himself  unpopular.  The 
meeting  was  held  in  the  United  States  Court 
room,  old  court  house,  where  the  Municipal 
Court  for  criminal  business  was  formerly  held. 
Though  not  a  member  of  the  bar,  the  count  was 
present  and  made  a  speech,  in  which  he  said 
that  he  was  of  the  opinion  that  the  courts  had 
better  adjourn,  and  transact  no  business  ;  but 
his  speech  only  tended  to  increase  the  excite- 
ment. A.  H.  Fiske,  who  spoke  in  deprecatory 
terms  of  the  count's  speech,  poured  oil  on  the 
troubled  waters  ;  he  said  that  perhaps  it  miglit 


294  IN  RE-TORT. 

be  well  to  adjourn  for  a  day  or  two  until  the 
first  excitement  was  over,  and  then  proceed  as 
usual.  His  remarks  were  received  with  appro- 
bation by  all  present,  and,  upon  his  motion,  the 
court  adjourned  for  two  or  three  days. 

The  next  I  remember  of  the  count  was  upon 
the  occasion  of  a  ball  in  Boston.  Francis  II. 
Underwood,  writing  an  account  of  it  and  stating 

who  were  present,  said  among  them  were 

and  ,  naming  some  distinguished  individ- 
uals, and  the  soi-disant  George,  Count  Joannes. 
Thereupon  the  count  brought  a  suit  for  libel 
against  Mr.  Underwood.  He  (the  count)  tried 
his  own  case,  and  Charles  Allen,  now  one  of 
the  justices  of  the  Supreme  Judicial  Court, 
was  counsel  for  Underwood.  The  trial  lasted 
several  days ;  and  among  other  things,  it  was 
proved  that  at  a  convivial  dinner  in  London 
the  company  got  np  this  title  and  gave  him  a 
parchment  certificate  with  seal  attached.  The 
verdict  was  in  favor  of  Mr.  Underwood. 

At  the  time  of  the  war  there  were  a  great 
many  envelopes  in  circulation  with  different  pic- 
tures and  mottoes  upon  them.  I  know  of  one 
collection  containing  eight  hundred  or  more. 
On  one  occasion,  Joseph  Nickerson  sent  the 
count  a  notice  to  appear  at  court  at  the  hearing 
of  some  motion ;  this  notice  was  inclosed  in  an 
envelope,  on  the  left-hand  corner  of  which  was 


COUNT  JOANNES.  295 

a  jackass,  and  uiKlcrneath  it  the  word  "  seces- 
sionist." The  count  immediately  brought  a  suit 
against  Nickerson  for  libel  to  recover  the  sum 
of  $4000,  alleging  that  Nickerson  had  charged 
him  with  being  a  secessionist  and  a  jackass. 
William  L.  Burt,  afterwards  postmaster  of  Bos- 
ton, defended  Nickerson.  Nickerson  testified 
that  he  took  the  envelope  from  his  desk  among 
a  number  of  others  ;  that  he  had  no  malice 
against  the  count,  and  no  intention  of  hold- 
ing him  up  to  ridicule.  Burt  asked  the  count 
while  he  was  on  the  witness  stand,  if  the  word 
"  secessionist "  did  not  refer  to  the  jackass. 
The  count  replied :  "  Clearly  not.  A  secession- 
ist may  be  a  jackass,  but  a  jackass  cannot  be  a 
secessionist."  Then  Burt  produced  an  envelope 
written  by  the  count,  addressed  to  "  Joseph 
Nickerson, Esq.,  Attorney-at-Law, etc.,  etc.,  etc.," 
and  then  asked  the  count  if  that  address  ac- 
corded with  his  ideas  of  good  manners.  The 
count  said  it  clearly  did.  Then  Burt  asked  him 
what  the  three  et  ceteras  were  for.  The  count  re- 
plied :  "  First,  attorney ;  second,  justice  of  the 
peace;"  and  stopped.  "And  third?"  asked 
Burt.  "  That  is  meant  to  be  genei-ally  compli- 
mentary," answered  the  count. 

In  this  case  Mr.  Ropes  was  a  witness.  The 
count  asked  him :  "  Did  you,  or  did  you  not,  say  I 
was  a  d fool  ?  "  The  witness  answered  "  No." 


296  JA'   RE-TORT. 

Bart  asked  him  if  he  used  any  profane  words. 
Witness  :  "  There  are  different  ideas  about  pro- 
fanity ; "  and  then  Mr.  Ropes  was  allowed  to  ex- 
plain,    lie  said  he  told  Nickerson  that  he  had 

heard  the  count  called  crazy  and  a  d fool, 

but  whoever  took  him  for  either  would  find  him- 
self mistaken.  Nickerson  told  him  (the  witness) 
that  he  would  break  the  count  down  in  court, 
and  witness  replied  that  it  would  be  the  toughest 
job  he  ever  did.  In  his  argument  to  the  jury, 
the  count  glared  at  Nickerson,  and  said  :  "  We 
judge  a  jackass  by  the  length  of  his  ears ;  judge 
between  the  defendant  and  me." 

He  brought  a  suit  against  Governor  Andrew 
for  libel,  and  another  against  William  L.  Burt ; 
and  after  many  such  suits,  he  was  tried  and  found 
guilty  of  being  a  common  barrator. 

He  afterwards  advertised  himself  to  play 
Romeo  at  the  Boston  Theatre,  for  his  own  bene- 
fit. I  was  present ;  and  in  one  scene  where  he 
was  obliged  to  get  on  his  knees  he  was  assisted 
to  regain  his  feet,  as  his  joints  were  so  stiff  that 
he  could  not  rise.  The  whole  audience  was  con- 
vulsed with  laughter,  and  it  was  some  time 
before  he  could  go  on. 

He  was  once  arguing  a  case  in  the  Justices' 
Court  before  Chief  Justice  Rogers,  who  re- 
marked that  the  law  was  so  and  so  (stating  it)  ; 
that  such  was   his    impression.    "  Nevertheless, 


COUNT  JOANNKH.  297 

you  can  look,  count."  The  count  replied  with 
a  peculiar  suavity  of  manner :  "  I  should  not 
presume  to  look  while  your  honor  is  on  the 
bench." 

Count  Joannes  had  his  photograph  taken  and 
put  into  a  costly  frame,  upon  which  he  had  in- 
scribed, "  To  my  friend  Edwin  Forrest,  from  the 
Count  Joannes."  The  picture  was  exhibited  in 
Tilton's  window.  Some  time  prior  to  this  the 
count  had  borrowed  five  dollars  of  J.  L.  New- 
ton, who  sued  out  a  writ  attaching  the  picture, 
and  the  officer  carried  it  away.  Thereupon  the 
count  paid  Ne^N-ton  and  redeemed  the  picture, 
saying  that  he  felt  very  much  hurt.  He  was  a 
fine-looking  man  of  pleasing  address,  —  in  one 
word,  debonair,  —  but  lacked  stability  of  char- 
acter, or,  in  every-day  language,  "  common 
sense."  He  finally  went  to  New  York  to  live, 
and  there  ended  his  days. 

Mr.  A.  V.  Lynde,  than  whom  there  is  no 
more  temperate  man,  asked  a  witness :  "  Don't 
you  drink  a  glass  of  liquor  sometimes  ?  "  He  re- 
plied :  "  Yes,  I  take  a  glass,  the  same  as  yourself, 
occasionally." 

David  H.  Mason  was  a  man  who  always  talked 
to  the  jury  in  stentorian  tones  and  made  long 
cross-examinations.      Once  ha\'ing  examined  a 


298  /;V   RE-TORT. 

witness  at  great  length  he  said :  "  Now,  sir. 
have  n't  people  been  to  you  to  try  to  make  you 
tell  a  different  story  from  what  you  have  here,' 
sir  ?  "  Witness  :  "  Yes,  sir."  "  Now,  sir,  who  ?  " 
said  Mason.  Witness :  "  I  reckon  you  have 
tried  as  hard  as  anybody."  Not  rebuffed  at  this, 
Mason  said  :  "  Did  n't  you  go  to  see  Smith, 
sir?"  "Yes,  sir."  "  Wliat  did  you  go  to  him 
for?"  "To  see  if  he  would  tell  the  truth." 
"  Did  n't  you  think  he  would  tell  the  truth  ?  " 
"  Well,  I  heard  he  had  been  to  your  office,  and 
I  did  n't  know  what  he  might  say." 

Robert  Morris  was  a  leading  colored  practi- 
tioner, and  sometimes  very  amusing  incidents 
occurred.  The  first  one  I  remember  was  this : 
One  Brown  got  into  some  difficulty ;  he  trans- 
ferred or  sold  his  stock  in  trade  to  one  Turner 
on  a  pass-book  and  then  left  the  State.  Both 
were  colored  men.  After  the  difficulty  had 
blown  over  Brown  returned  to  Boston  and 
claimed  that  he  only  let  Turner  have  these  goods 
to  keep  while  he  was  gone.  Turner  would  not 
give  them  up  and  Mr.  Searle  brought  a  suit  in 
trover^  Brown  against  Turner.  Turner  was 
obliged  to  prove  Brown's  signature,  which  Mor- 
ris tried  once  or  twice  and  failed  in.  Then  he 
called  another  witness  and  said :  "  Did  you  ever 
see  Brown  write  ?  "     "  Yes,"  said  the  witness. 


PROVING    A    SIGXATURE.  290 

Morris  held  the  piece  of  book  behind  him  and 
said  :  "  Now  suppose  I  shoukl  show  you  his  sig- 
nature, do  you  think  you  woukl  know  it  ? " 
"  Seeing'  as  how  people  write  different  at  differ- 
ent times,  I  don't  know  as  I  should."  Morris, 
opening  the  book,  sliowed  him  the  signature  and 
asked  :  "  How  does  that  strike  you  ?  "  Witness 
looked  at  it  and  replied :  "  That  strikes  me  just 
how  I  couldn't  tell."  "John  Wright,  take  the 
stand."  Mr.  Wright  came  forward,  the  darkest 
colored  man  I  ever  saw.  "  Did  you  ever  see 
Brown  write  ? "  "  Oh,  yes,  sir  ;  frequently." 
Morris  showed  him  the  signature  and  said : 
"Well,  what  do  you  think  of  that?"  "Oh,  I 
knows  not'ing  'bout  dat ;  I  t'ought  you  axed  me, 
'  Wright,  did  you  ever  see  Brown  ? '  "  The  whole 
room  was  convulsed  with  laughter,  and  even 
Judge  Hoar  smiled. 

Mr.  Morris,  arguing  a  case,  stated  the  evidence 
to  be  so  and  so.  Counsel  on  the  other  side  said, 
"  There  's  no  such  evidence."  Morris  :  "  I  have 
it  on  my  minutes  ;  the  judge  probably  has  it  on 
his ;  the  counsel  on  the  other  side  ought  to  have 
it,  and,  gentlemen  of  the  jury,  yon  have  it  in 
your  memory."  When  the  opposing  counsel 
arose  he  said:  "Gentlemen,  I  shall  not  be  so 
amusing  as  brother  Morris."  Morris  :  "  You 
can't  do  it." 

Morris  was  trying  a  case  in  which  his  client 


300  IN  RE-TORT. 

sued  for  board,  and  after  the  plaintiff  had  testi- 
fied in  chief,  Mr.  Robert  M.  Morse  cross-exam- 
ined liim,  and  as  a  final  question  asked :  "  Have 
you  been  in  the  House  of  Correction  ? "  Wit- 
ness: "Yes,  sir."  Morse:  "That's  all,  sir." 
Morris :  "  No,  sir  ;  that 's  not  all.  What  were 
you  sent  there  for?"  Witness:  "For  selling 
liquor."  Morris  :  "  The  man  that  sold  it  to  you 
did  not  go  there,  did  he  ?  "  Witness :  "  No,  sir." 
Morris:  "That's  aU." 

Morris  was  trying  a  case  in  trover  in  which 
the  value  of  a  goat  was  in  question.  Mr. 
Sprague  for  defendant.  Morris  in  closing  said 
to  the  jury :  "  Gentlemen,  we  can't  find  out 
what 's  become  of  dat  goat,  but  I  mistrust  bro- 
ther Sprague  has  had  some  of  the  milk  of  dat 
goat  for  breakfast." 

Isaac  S.  Morse  brought  a  suit  for  a  dress- 
maker to  recover  damages  for  making  a  dress. 
Robert  Morris  defended  on  the  grounds  that  it 
did  not  fit  and  that  the  dressmaker  substituted 
another  piece  of  silk.  A  piece  of  silk  from  the 
original  material  was  put  into  the  case  and  com- 
pared with  the  dress,  and  an  expert  testified  that 
they  were  different.  Morris  asked  if  he  could 
tell  the  difference  between  any  two  silks.  "  Yes," 
said  the  witness.  Morris  :  "  Can  you  tell  the 
difference  between  that  colored  man  there 
[pointing]  and  myself  ?  "     Mr.  Morse  :  "  I  have 


DIFFERENCE   IN    WOOL.  301 

the  witness  here  to  prove  difference  in  silks,,  and 
not  iu  loool.^' 

A  certain  Mr.  Jones,  living  in  Boston,  had 
failed  ;  his  creditors  filed  a  report  in  the  Insol- 
vency Court.  A  Mr.  Billiard  of  New  York,  who 
was  here  trying  a  case,  wished  to  put  in  that  re- 
port as  evidence,  and  also  wanted  to  know  what 
a  certain  Mr.  Bond  said  at  a  public  meeting  of 
the  creditors  at  which  he  (Bond)  was  present. 
Nathan  Morse  objected.  Judge  Devens  :  "  Mr. 
Bond,  you  say,  was  present  and  said  nothing  ?  " 
Mr.  Bullard :  "  Yes,  sir ;  and  we  contend  that 
he  should  have  spoken."  Mr.  Morse :  "  That 
depends  upon  whether  he  was  a  good  speaker 
in  public." 

Joseph  Nickerson,  one  of  the  sharpest  practi- 
tioners at  the  bar,  was  trying  a  case  opposed  to 
A.  A.  Dame.  During  the  trial  Mr.  Dame  did 
something  equally  sharp,  and  Nickerson  said  it 
was  a  kind  of  sharp  practice  he  was  not  used  to. 

Henry  W.  Paine  came  to  Boston  from  Maine, 
and  after  he  had  practiced  here  a  little  while, 
was  invited  by  Colonel  Seth  J.  Thomas  to  dine 
with  some  other  guests  at  his  house  ;  among 
them  being  a  gentleman  who  had  known  Mr. 
Paine  in  the  East.     After  the  usual  sfreetina: 


302  IN   RE-TOUT. 

the  gentleman  asked  :  "  How  are  you  getting  on 
here,  Paine?"  "Oh,  fairly,  fairly,"  said  Mr. 
Paine.  "  Fairly !  "  said  the  other ;  "  how 's  that, 
when  you  were  the  leader  at  the  Kennebec 
bar  ?  "    "  I  'U  tell  you,"  said  Mr.  Paine.     "  You 

know     our     friend     Smith     down     at    ?" 

"  Yes."  "  One  day,"  said  Mr.  Paine,  "  Smith 
caught  a  fine  salmon,  which  he  took  into  the  house 
and  showed  to  his  wife,  saying,  '  What  shall 
we  do  with  this  salmon  ? '    Said  his  wife, '  You're 

going    down   to to-morrow,  are  n't   you  ?  ' 

'  Yes,'  said  Smith.  '  Take  it  and  on  your  way  stop 
at  Parson  Jones's  and  make  him  a  present  of 
it.'  He  said  he  would.  His  wife  packed  it  in  a 
cloth  and  sewed  it  up  very  neatly,  and  the  next 
morning  he  put  it  in  the  box  of  his  vehicle  and 
started  off.  He  stopped  to  dine  at  a  tavern  on 
the  way,  and  told  the  landlord  what  he  was  go- 
ing to  do  with  it.  The  landlord  went  out  and 
got  the  salmon,  brought  it  into  the  house,  took 
it  out  of  the  cloth,  put  in  a  lot  of  dried  codfish, 
hay,  and  stone,  sewed  up  the  cloth  neatly,  and 
put  it  back  into  the  vehicle.  Smith  went  on, 
stopped  at  Parson  Jones's,  and  told  him  that  he 
and  his  wife  thought  that  they  would  make  him 
a  present  of  a  salmon.  He  took  out  the  bundle, 
left  it  there,  and  then  went  on  to  the  next  town. 
After  having  transacted  his  business  he  started 
for  home  the  next  morning,  stopping  at  the  par- 


SALMON   OR   COD?  303 

son's  on  the  way  to  inquire  how  they  liked  the 
sahnon.  They  began  laughing,  and  when  he 
asked  what'  they  were  laughing  about  they  told 
him  that  he  did  n't  bring  any  salmon,  and 
showed  him  what  he  had  brought.  He  was 
somewhat  amazed,  but  thought  that  they  had  bet- 
ter sew  up  the  material  he  had  brought  and  he 
would  take  it  back.  So  it  was  sewed  np,  and  he 
put  it  in  his  box.  Again  he  stopped  at  the  same 
tavern  to  dine,  and  when  he  saw  the  landlord  he 
told  him  what  had  happened.  The  landlord 
went  out,  got  the  bundle,  took  out  the  stuff,  re- 
placed the  salmon,  and  sewed  up  the  bundle. 
Then  Mr.  Smith  went  home,  and  after  having 
unharnessed  his  horse  he  went  into  the  house 
and  sat  down.  His  wife  said :  '  Why,  Smith, 
you  seem  to  be  in  a  quandary ;  what 's  the  mat- 
ter ? '  He  said  :  '  I  thought  I  carried  a  good 
salmon  down  to  Parson  Jones,  but  it  turned  out 
to  be  nothing  but  a  lot  of  dried  salt  fish,  hay, 
and  stones.'  '  Pooh  ! '  said  his  wife  ;  '  did  n't  I 
sew  him  up  and  don't  I  know  ?  Where  is  it  ? ' 
'  In  the  box  in  the  vehicle  in  the  barn.'  '  Get  it, 
and  bring  it  in  here,'  said  his  wife.  He  brought 
it  in,  opened  it,  and  there  was  the  salmon.  '  Ah,' 
said  Smith,  shaking  his  fist  at  the  salmon, 
'  you  're  a  dashed  good  salmon  on  the  Kennebec, 
but  down  on  the  Penobscot  you  're  nothing  but 
a  cod.'  " 


304  JX  RE- TORT. 

A  certain  member  of  the  bar,  not  distinguished 
for  his  good  manners,  was  trying  a  cause  as 
counsel  before  Henry  W.  Paine  as  referee.  Mr. 
John  T.  Paine,  one  of  the  counsel,  was  a  man  of 
very  fine  appearance  and  excellent  manners,  but 
not  so  highly  educated  a  man  as  the  counsel 
who  was  opposed  to  him.  Mr.  Paine  in  his 
closing  argument  commented  rather  severely  on 
the  testimony  of  one  of  the  witnesses  for  the 
other  side,  and  amongst  other  things  said  :  "  As 
to  the  testimony  of  Jones,  Mr.  Referee,  I  think 
you  should  give  to  it  very  little  weight.  He  is 
evidently  one  of  those  non  mi  recordo  witnesses." 
"  ]Vo7i  mi  recordo,^^  shouted  the  other  counsel ; 
"  what  does  that  mean  ?  "  "  Why,"  said  Paine, 
"  that 's  Latin  for  "  —  "  Latin  !  "  said  the  op- 
posite counsel ;  "  I  shoidd  think  it  was  hog 
Latin."  "  Well,"  said  Paine,  "  I  should  think 
you  might  be  a  good  judge  of  hog  Latin." 

John  C.  Park  told  me  that  a  man  came  to 
him  and  wanted  him  to  defend  an  action  brousfht 
against  him  by  Richard  H.  Fuller,  when  the 
latter  first  came  to  the  bar.  The  case  was  this : 
When  Fuller  and  the  defendant  in  the  action 
were  in  college,  they  made  a  wager  of  twenty- 
five  dollars,  which  was  put  in  writing,  as  to  which 
of  them  would  be  first  married.  Fuller  married 
first  and  sent  to  the  defendant  for  the  twenty- 


MARRIAGE    WAGERS.  305 

five  dollars,  payment  of  which  was  refused,  and 
Fuller  thereupon  brought  suit.  Park  filed  his 
answer  in  defense  before  the  action  was  entered, 
setting  forth  among  other  things  that  such  wagers 
were  against  the  policy  of  the  law,  and  counte- 
nanced immoral  marriages ;  and  that  plaintiff 
(Fuller)  hastened  his  marriage  in  order  to  make 
twenty-five  dollars.  When  Fuller  saw  the  an- 
swer in  the  clerk's  office,  he  got  frightened  or 
ashamed  and  did  not  press  his  action. 

When  the  court  began  to  have  two  sessions, 
in  the  first  division  of  cases  for  the  first  and 
second  session,  it  was  thought  expedient  to  give 
the  even  numbers  to  the  first  session,  and  the 
odd  numbers  to  the  second.  John  C.  Park  said 
to  me :  "  The  court  exercises  strict  jurisdiction 
over  gambling,  but  the  first  thing  the  court  did 
this  term  was  to  'odd  and  even.'  " 

An  Irishman  on  the  stand  testified  about  buy- 
ing some  rose  gin  for  thirty-five  cents  a  gal- 
lon. Counsel  asked  him  to  explain  to  the  jury 
what  rose  gin  is.  The  witness  said :  "  An'  faith, 
the  gintlemen  of  the  jury  knows  what  rose  gin 
is." 

In  1849,  in  the  Court  of  Common  Pleas, 
there  was  a  case  tried  about  the  sale  of  some 
property  which  was  supposed  to  have  been  stolen 


30G  IN  RE-TORT. 

by  Bristol  Bill,  a  celebrated  burglar.  Francis 
E.  Parker  was  counsel  for  the  i)laiutiff,  and,  if 
my  memory  serves  me  correctly,  Messrs.  Smith 
and  Bates  were  counsel  for  the  defendant.  It 
was  customary  at  this  time  to  have  an  issue 
tendered  and  joined  in  the  old  style  of 
pleading-,  to  wit :  in  cases  of  assumpsit,  "  Now  . 
comes  the  defendant  when,  etc.,  where,  etc., 
and  says  he  never  promised  in  manner  and 
form  as  set  forth  in  plaintiff's  writ,  and  of 
this    he    puts    himself    upon    the    country   by 

,  his  attorney.     And  the  plaintiff  doth  the 

like  by, ,  his  attorney."     There  was  a  great 

deal  of  feeling  manifested  at  the  trial,  and  John 
Wilson,  who  was  a  constable  at  that  time  and 
whose  reputation  was  not  of  the  best,  was  the 
principal  witness  for  the  plaintiff.  The  verdict 
was  for  the  plaintiff.  A  day  or  two  after  the  ver- 
dict was  rendered,  Samuel  D.  Parker,  Esq.,  who 
was  district  attorney,  came  into  the  office  and 
said  he  wanted  to  see  the  papers  in  the  case. 
I  imagined  he  was  going  to  indict  Wilson  for 
perjury.  I  looked  the  papers  all  over,  and  then 
handed  them  to  Mr.  Parker.  After  he  had 
examined  them,  and  as  he  was  about  to  leave 
the  office,  I  remarked :  "  I  think,  Mr.  Parker, 
there  is  one  thing  you  want  that  is  not  there." 
"H'm,  h'm,  what's  that?"  he  asked.  I  said: 
"  There  's  no  issue  joined  there."     He  looked 


INDICTMENT  NOT  PRESENTED.         307 

the  papers  over  again,  and  said :  "  Here 's  the 
simUiter.''''  "  Yes,"  I  said ;  "  but  it  is  not 
signed."  "  He,  h'm,"  said  Mr.  Parker ;  "  leave 
the  papers  here  a  few  minutes  until  I  look  at  the 

volume  of  Massachusetts."     He  was  gone 

a  few  moments,  and  on  his  return  said :  "  I 
think  you  are  right ;  I  had  that  indictment  all 
drawn,  and  all  it  lacked  was  the  signature  of 
the  foreman  of  the  grand  jury."  Then  he  went 
out.  The  clerk,  Mr.  Willard,  was  not  in  at  the 
time.  In  a  little  while  a  boy  rushed  into  the 
office  in  great  haste,  and  putting  a  paper  hur- 
riedly into  my  hand  was  about  to  leave.  Sus- 
pecting something,  I  shut  the  door,  read  the 
paper,  and  found  it  was  an  issue  in  the  case  pro- 
perly tendered,  joined,  and  signed.  I  told  the 
boy  to  take  it  back,  for  it  was  too  late.  Then 
I  went  and  told  Mr.  Francis  E.  Parker  what  I 
had  done,  and  on  my  return  to  the  office  I 
found  the  clerk  had  come  in.  I  told  him  what 
I  had  done,  and  he  said  I  had  acted  judiciously. 
In  a  few  moments  Mr.  Bates  came  in  with  the 
same  paper  and  wanted  it  filed.  Mr.  Willard 
declined  to  do  so,  saying  that  it  was  too  late, 
as  certain  rights  had  been  acquired.  Conse- 
quently the  indictment  was  not  presented.  A 
week  later  I  found  a  silver  cup  on  my  desk 
with  the  name  of  one  of  my  children  engraved 
upon  it.     Who  left  it  I  never  knew. 


308  IN  RE-TORT. 

At  the  time  of  which  I  have  been  writing, 
the  old  court  house  was  the  same  in  the  rear  as 
it  is  to-day  in  front,  that  is,  it  extended  no  far- 
ther than  the  stairs  which  one  ascends  in  going 
where  the  law  library  then  was.  The  addition 
where  the  sheriff's  office  was,  the  record  room  of 
the  Superior  Court,  the  law  library,  and  the 
second  session  room  of  the  Superior  Court,  was 
erected  in  1861.  The  United  States  Court  was 
held  in  a  room  lately  occupied  by  the  Mimici- 
pal  Criminal  Court.  The  marshal's  office  was 
where  the  reporter's  was,  and  the  law  library 
was  where  the  Superior  Court  held  equity  ses- 
sions. The  Police  Court  was  where  the  Civil 
Municipal  was,  and  the  Justices'  Civil  Court  was 
where  the  offices  of  the  commonwealth  law 
clerk  was,  and  the  Municipal  Criminal  clerks 
were.  Costs  were  different  in  the  Court  of 
Common  Pleas.  Thirty-three  cents  per  diem 
for  attendance  was  the  allowance  by  statute  for 
taxable  costs  every  day  on  which  an  action  was 
open,  and  the  only  way  to  stop  the  costs  was  to 
continue  on  a  certain  day  and  note  it  upon  the 
docket.  The  cost  of  attendance,  the  three  long 
terms  of  October,  January,  and  April,  would 
be  from  $16.50  to  $19,  or  $17.80  each  term, 
and  the  July  term  about  $9  or  $10.  And 
this  I  hold  is  the  true  way  to  make  the  costs 
high.     It  left  parties  to  settle  or  try,  and  not 


A    SQUIRREL    STORY.  309 

SO  many  weak  cases  were  brought  as  at  present. 
Then  the  plaintiff's  attorney  did  not  charge  his 
client  so  much,  as  the  defeated  party  had  to  pay 
a  good  bill  of  costs.  Now  the  plaintiff  has  to 
pay  the  whole  of  his  lawyer's  fees,  or  deduct  it 
out  of  the  verdict,  if  he  gets  one.  Since  I  wrote 
the  above  a  member  of  the  bar  has  told  me  that 
Chief  Justice  Shaw  said  the  costs  should  be 
high  because  it  was  a  bar  to  litigation. 

Horatio  G.  Parker  was  formerly  judge  of 
probate  in  western  Massachusetts.  One  day 
he  noticed  a  large  old  farmer  waiting  all  the 
forenoon  in  his  court  room.  In  the  middle  of 
the  forenoon  another  old  farmer  came  in  and 
said  to  the  first  one :  "  What  you  doing  here, 
Captain  Scott  ?  "  "  Waiting  for  the  Probate 
Court,"  said  Scott.  "  Why,  this  is  the  Probate 
Court,"  said  the  other.  "  Where  is  the  judge?" 
said  Scott.  "There"  (pointing  to  Parker). 
"  That  fellow! "  said  Scott;  "  I  saw  him  shooting 
chipmunks  this  morning."  In  the  afternoon 
Scott  appeared  again,  and  Parker  assented  to 
his  claim.  Captain  Scott  said  he  was  much 
obliged,  and  Parker  said,  "  I  'm  sorry  that  a 
man  of  your  age  and  experience  can't  tell  a 
chipmunk  from  a  gray  squirrel."  Said  Scott : 
"  Why,  squire,  did  you  hear  me  ?  "  "  Yes,"  said 
Parker,  "  and  I  am  sorry,"  etc.,  repeating  his 


310  /iV  RE-TORT. 

remarks.  "  Have  you  got  'em  ?  "  asked  Scott. 
-Yes,"  said  Parker.  "Let's  see  'em."  He 
and  Parker  went  out  and  looked  at  them  ;  the 
captain  poked  them  over  and  turned  them,  to 
make  sure  they  were  gray  squirrels,  then  poked 
the  judge  in  the  ribs,  and  said :  "  Squire,  let 's 
go  and  take  su'thin." 

A  witness  testified  that  a  certain  statement  he 
made  to  a  person  was  false.  Mr.  Ranney : 
"  Are  you  in  the  habit  of  lying  ?  "  Witness : 
"  I  don't  know."  Ranney :  "  Do  you  lie  from 
habit  or  pleasure  ?  "     Witness  :  "  Both." 

Mr.  Ranney  and  Mr.  Nathan  Morse  engaged 
on  opposite  sides.  Mr.  Morse :  "  Now,  Mr. 
Witness,  I  did  n't  ask  you  that ;  no  doubt  your 
answer  pleases  brother  Ranney."  Mr.  Ranney  : 
"  The  truth  always  pleases  me."  Mr.  Morse : 
"  Because  it  is  so  rare  ?  "  Mr.  Ranney :  "  When 
you  are  on  the  other  side." 

In  the  case  of  Mann  against  a  life  insurance 
company,  Mr.  Ranney  got  a  verdict  for  plaintiff. 
Defendant  moved  for  a  new  trial,  and  among 
other  things  contended  that  plaintiff's  death 
might  have  been  caused  by  excessive  smoking. 
In  an  argument  for  a  new  trial  I  took  down  a 
portion  of  Mr.  Ranney's  remarks  as  follows  : 
"  Was  he  an  excessive  smoker  ?  Who  can  tell  ? 
The  term  is  relative.    No  man  thinks  he  smokes 


HOM(EOPATHIC   SMOKING.  311 

to  excess.  I  smoke  ten  cigars  a  clay  and  I  don't 
think  I  smoke  to  excess,  and  a  person  may  think 
another  smokes  excessively  who  smokes  three 
per  day.  The  doctor  who  testified  here  was 
a  homoeopath,  and  he  wanted  smoking  done  in 
homceoj^athic  quantities  in  a  thousandth  dihition 
of  a  cigar." 

In  a  certain  case  Mr.  Ranney,  in  examining  a 
witness  and  holding  his  notes  of  a  previous  trial 
in  his  hand,  said :  "  Now  did  n't  you  swear  before 
that  you  were  at  the  house  a  week  before  the 
occurrence  ?  "  Witness  :  "  I  don't  know,  but  if 
you  have  got  it  down  there  I  suppose  I  must 
have  said  so."  Sweetser  :  "  Oh,  no,  that  does  n't 
follow  by  any  means." 

In  the  same  case.  Mr.  Ranney :  "  Did  Mr. 
Lund  thank  you  for  getting  him  figs  ?  "  Witness : 
"  No,  I  don't  think  he  did."  Ranney :  "  Did  he 
ever  thank  you  for  anything  ?  "  Witness : 
"  Not  as  I  remember."  Ranney :  "  Did  he 
thank  you  for  coming  to  visit  him  ?  "  Witness  : 
"  No."  Ranney  :  "  Did  he  ever  thank  you  for 
going  away  ?  "     Witness  :  "  No." 

Benjamin  F.  Russell  had  quite  an  extensive 
criminal  practice.  He  bought  an  excellent  over- 
coat for  which  he  paid  sixty  dollars.  Being 
sent  for  to  the  Criminal  Court  he  went  in  great 
haste,  leaving  his  coat  hanging  up  in  his  office. 


312  IN  HE-TOirr. 

The  next  day  a  persou  came  into  his  office  to 
engage  him  to  try  his  case,  which  was  for  larceny. 
Mr.  liussell  demanded  ten  dollars  as  a  re- 
tainer. The  client  said,  "You  have  only 
charged  five  dollars  before ;  why  do  you  charge 
double  now  ?  "  Mr.  li.  replied,  "  Some  of  you 
fellows  have  stolen  my  overcoat,  and  you  have 
got  to  subscribe,  in  order  that  I  may  get  an- 
other." 

Ivory  W.  Richardson,  a  man  of  excellent 
natural  abilities,  was  appointed  one  of  the  ex- 
aminers of  young  men  on  their  application  for 
admission  to  the  bar.  To  one  person  whom  he 
examined  and  who  seemed  to  know  the  statutes 
very  well  but  not  the  common  law,  he  said :  "I 
can't  certify  you  for  admission,  for  the  next 
legislature  will  repeal  all  you  know." 

Two  Irishmen  were  sitting  together  one  day 
in  the  court  room  when  I  overheard  this  : 
Flanagan :  "  And  have  you  a  case  here,  Dono- 
van ? "  "  Yes,"  said  Donovan.  Flanagan : 
"Who's  your  counsel?"  Donovan:  "Mr. 
Gargan"  (pointing  to  him).  "Ah,"  said  Flana- 
gan, "  why  don't  you  get  Misther  Roiley  ?  is  n't 
he  the  b'y  ?  Did  n't  I  see  him  the  other  day 
arguing  the  case  with  the  judge,  and  the  judge 
could  n't   hold  a  candle  to  him,   and  could  n't 


FROM   IRELAND.  313 

argue  with  him  any  longer,  and  had  to  say  to 
him,  '  Sit  down,  Misther  Koiley.'  " 

Mr.  Russ  and  J.  R.  Smith  were  trying  a  case, 
opposed  to  each  other.  Mr.  Russ  for  the  defend- 
ant had  his  client  sworn,  and  asked  him,  "  State 
what  services  you  performed  for  the  plaintiff." 
Mr.  Smith :  "I  object  until,  etc.,  and  besides  no 
set-off  has  been  pleaded."  Mr.  Russ :  "If  there 
is  any  question  as  to  the  order  of  proof,  I  will 
waive  it  for  the  present.  It  used  to  be  said 
that  it  makes  no  difference  which  leg  of  the 
trousers  one  puts  on  first."  Judge  Lathrop : 
"  Provided  he  has  a  leg  to  stand  on." 

Mr.  Russ  was  interrogating  a  witness  who  was 
driving  a  coal-cart  at  the  time  of  a  certain  col- 
lision. Russ :  "  Where  were  you  going  with 
that  coal-cart?"  "To  White's  Wharf,  sor." 
Russ  :  "  Where  did  you  come  from  ?  "  Witness : 
"  From  Ireland,  sor." 

Mr.  .,    a   practicing    lawyer   in    Boston, 

married  a  daughter  of  Judge  ,  one  of  the 

judges  of  the  Superior  Court.     Mr. had  a 

cause  which  was  liable  to  come  on  before  Judge 

,  in  which  case  Mr.  Russ  was  the  opposing 

counsel.  Mr. wrote  to  Mr.  Russ  :  "  Con- 
sidering my  relations  with  Judge ,  hadn't 

our  action  better  be  postponed  till  some  other 
judge  sits  ?  "     Russ  knew  nothing  of  the  mar- 


314  IN   RE-TOUT. 

riage,    and    supposed    that    Mr.  had    had 

some    difficulty   with  Judge  ,  and  replied : 

"•  I  hate  the as  much  as  you  do,  hut  perha})S 

we  had  better  go  on ;  I  'm  not  afraid  of  hiui." 
It  is  current  report  that  the  case  came  on  before 

Judge  ,  and,  observing  some  hesitation  on 

the  part  of  Mr.  Russ,  Judge  remarked : 

"  Go  on,  Mr.  Russ,  don't  be  afraid." 

When  George  Sennott  came  from  Vermont  to 
practice  law  in  Boston,  he  went  to  Judge  Met- 
calf  and  told  him  that  he  was  advised  by  Chief 
Justice  Redfield  of  Vermont  to  ask  him  (Judge 
Metcalf)  what  books  he  should  read.  Judge 
Metcalf  gave  him  a  list.  Some  time  afterward 
Judge  Redfield  came  to  Boston  to  practice,  and 
in  conversation  with  Judge  Metcalf  the  latter 
told  him  about  this  incident  of  Sennott.  Said 
Judge  Redfield  :  "  What  did  you  advise  him  to 
read  ?  "  Judge  Metcalf  told  him,  and  asked  : 
"  What  would  you  have  advised  him  to  read  ?  " 
"Oh,"  said  Judge  Redfield,  "I  should  have 
advised  him  to  read  the  decalogue." 

When  Hiram  S.  Shurtleff  was  acting  as 
clerk  in  the  Criminal  Court,  George  Sennott 
was  one  day  somewhat  indecorous  and  disrespect- 
ful to  the  Court.  Judge  Reed  told  him  several 
times  to  stop,  which  Sennott  disregarded.  Then 
Judge  Reed  told  him  if  he  did  not  stop  he  would 


ANECDOTES    OF   GEORGE   SENNOTT.       315 

commit  liim.  Sennott  sat  down.  After  some 
minutes  Judge  Reed  said  to  Sliurtleff :  "  I  found 
I  was  angry,  and  I  would  not  commit  him." 
Subsequently  Sennott  said  to  Sliurtleff  :  "  I  was 
frightened  ;  I  thought  he  would  commit  me." 
"  Oh,"  said  Shurtleff,  "  he  would  not  have  com- 
mitted you.  "  "  Why  not  ? "  said  Sennott. 
"  Because,"  said  Shurtleff,  "  he  would  n't  have 
committed  a  nuisance." 

Sennott  once  made  a    motion    before    Judge 

,  and  while  the  judge  was  looking   at   the 

statutes  Sennott  kept  up  an  incessant   talking. 

Judge :  "  I  don't  know  that  there  is  any 

advantage  in  keeping  up  this  talk."  Sennott : 
"  As  nothing  was  going  on  I  thought  I  would 
occupy  the  time  in  saying  something."  Judge 
:  "  You  had  better  occupy  the  time  in  say- 
ing nothing." 

George  Sennott  went  to  Virginia  to  defend 
some  of  John  Brown's  associates.  A  newspaper 
there  said :  "  We  presume  lager  beer  will  ac- 
cumulate in  Boston  while  Sennott  is  here."  A 
man  from  there  said  to  a  clerk  in  our  office  : 
"  You  have  nominated  a  pretty  man  for  gov- 
ernor, a  man  who  went  to  Virginia  and  drank  all 
the  whiskey  there,  and  was  drunk  every  day." 
"  Are  n't  you  mistaken  in  the  man  ?  "  asked  Mr. 
U.,  the  clerk ;  "  is  n't  it  Sennott  ?  "  "  Oh,  yes," 
said  the  man,  "  I  beg  Mr.  Andrew's  pardon." 


316  IN  RE-TORT. 

There  was  some  resemblance  between  the  two. 
Mr.  Sennott  was  in  the  office  in  the  afternoon, 
and  we  told  him  the  story,  at  which  he  laughed 
heartily. 

This  same  autumn,  1859,  Sennott  was  making 
a  speech  at  a  Democratic  meeting.  A  fellow 
in  the  crowd  shouted  :  "  You  're  an  abolitionist ; 
did  n't  you  go  to  Virginia  to  defend  John 
Brown  ?  "  Sennott  replied  :  "  Am  I  a  thief  be- 
cause I  defended  you  on  a  charge  of  larceny  and 
kept  you  from  the  House  of  Correction,  where 
you  belong  ?  " 

Matthew  Hale  Smith,  who  earlier  in  life 
preached  as  a  Universalist  minister,  came  to  the 
bar  and  practiced  somewhat  in  Suffolk.  During 
a  portion  of  his  practice,  Sebeus  C.  Maine  was 
one  of  the  justices  of  the  Justices'  Court.  Smith 
told  me  tliat  as  he  was  not  well  he  occasionally 
went  on  horseback,  riding  a  white  horse.  As  he 
was  riding  one  day,  Maine  on  his  fast  trotter 
overtook  him  and  said  :  "  Smith,  you  put  me  in 
mind  of  a  passage  in  scripture,  '  Death  on  a  pale 
horse.' "  Smith  retorted :  "  You  put  me  in 
mind  of  another."  "  Ah,"  said  Maine,  "  what 's 
that  ?  "     '"  And  all  h— 1  foUowed  after.'  " 

Robert  D.  Smith  was  a  man  of  infinite  humor. 
There  was  a  case  on  trial  one  day  in  which  the 


BAPTISM  BY   FIRE.  317 

defendant,  a  Baptist,  was  sued  for  damages  for 
firing-  a  rocket  one  Fourth  of  July,  which  hit 
a  boy  in  the  eye.  This  boy  (the  plaintitf)  was 
the  son  of  a  member  of  an  Orthodox  church. 
Smith  said  that  the  defendant  had  tried  baj)tism 
by  water,  and  now  he  had  tried  it  by  fire. 

The  same  lawyer  was  examining  Mr.  Paige, 
the  well-known  insurance  agent,  on  the  subject 
of  certain  dangerous  articles  in  houses.  Mr. 
S. :  "  Is  the  risk  greater  where  there  are  board- 
ers ?  "  "  Yes."  "  Is  it  greater  where  there  is  a 
mother-in-law  ?  "  "  Mothers-in-law  are  not  gen- 
erally boarders."  "  Do  you  allow  gentlemen 
to  keep  liquors  in  their  houses  ?  "  "  Somewhat." 
"  And  not  increase  the  risk  ?  "  "  Generally 
not."  "  Suppose  I  came  to  you  to  insure  ray 
house,  should  you  ask  me  if  I  had  liquor  in  it  ?  " 
"  Take  it  for  granted." 

Smith  often  had  a  very  humorous  way  of  tell- 
ing stories  in  his  arguments.  I  had  a  colt  in 
Vermont  which  I  wanted  to  bring  down  to  Bos- 
ton. I  found  that  if  the  railroad  carried  him 
in  a  car  it  would  be  expensive  ;  but  that  if 
I  put  him  in  a  car  with  sheep  the  freight  would 
be  lower.  I  did  so,  and  on  the  passage  the 
sheep  ate  the  hair  off  his  tail,  owing,  probably, 
to  the  salt  in  it.  I  told  the  fact  to  Mr.  Smith, 
and  one  day,  as  he  was  arguing  a  case  before 
the  Supreme  Court   (I  don't  remember  how  it 


318  fN   RE-TORT. 

became  luatorlal),  the  Court  asked  hiin  to  illus- 
trate his  positiou.  "  Why,"  said  Mr.  Smith, 
"  Mr.  Willard  had  a  colt  come  down  in  the  cars 
from  Vermont  with  a  lot  of  sheep,  and  they  ate 
the  hairs  off  the  colt's  tail,  and  even  gnawed  the 
hide," — at  which  the  Court  was  convulsed  with 
laughter. 

A  client  of  Mr.  AVilliam  D.  Sohier,  on  en- 
tering the  latter's  office  one  day,  threw  off  his 
coat  and  said :  "  Why,  your  office  is  as  hot  as 
an  oven."  "  Why  not,"  said  Mr.  S. ;  "  it 's  here 
I  make  my  bread." 

A  friend  of  mine  writes  me  of  Mr.  Sohier 
thus  :  "  Edward  D.  Sohier  (commonly  spoken 
of  as  Ned  Sohier)  was  a  man  of  marked  per- 
sonal characteristics.  Erect,  he  would  have 
been  nigh  six  feet  in  height,  but  he  had  an 
habitual  stoop.  He  was  among  the  first  men  in 
Boston  to  wear  a  mustache  ;  he  was  the  first 
professional  man  who  wore  one,  and  this  only 
under  the  advice  of  an  eminent  oculist,  for  his 
eyes'  sake.  For  many  years  he  wore  a  fine 
drab  English  kersey  top-coat,  with  large  mother- 
of-pearl  buttons ;  his  hands  were  deeply  thrust 
into  the  hip  pockets,  unless  one  of  them  was 
clutching  a  great  garnet-colored  bag  fidl  of 
books  and  papers.  He  always  wore  a  felt  cap, 
with  the  broad  visor  well  pulled  down  over  his 


A  REMINISCENCE    OF  HARVARD.  319 

eyes,  and  ordinarily  a  green  shade  under  that. 
His  movements  were  very  rapid.  His  body  was 
the  apt  servant  of  his  quick  mind.  As  he 
darted  along  the  street,  glancing  suddenly  to 
right  and  left,  his  mobile,  eager  face  lighted  up 
with  instant  recognition  of  anything  strange  or 
ludicrous  ;  and  he  attracted  any  one's  attention. 
He  was  altogether,  in  his  make-up,  unlike  the 
conventional  man  or  American  ;  perhaps  in  some 
degree  because  he  was  of  old  Huguenot  descent. 
He  always  seemed  to  me  like  a  fine  specimen 
of  the  true  French  savant." 

Mr.  Edward  D.  Sohier  and  Mr.  Charles 
A.  Welch  I  had  known  in  boyhood ;  they 
were  students  in  Harvard  when  my  father  was 
professor  ;  and  when  I  entered  the  office  I  re- 
newed my  acquaintance  with  them.  Mr.  Sohier 
said :  "  Your  father  was  very  kind  to  me,  saved 
me  from  being  rusticated,  and  I  should  like  to 
do  anything  I  can  for  you."  I  asked  him  the 
circumstances.  He  said :  "  One  day  at  Com- 
mons (the  place  where  the  students  ate  their 
meals),  we  had  mouldy  bread.  I  took  a  piece 
to  the  fire  to  toast,  and  occasionally  looked 
round  to  see  if  Mr.  Barlow,  the  proctor,  were 
looking  at  me.  He  reported  me  to  the  faculty, 
and  said  I  was  making  grimaces  at  him,  and 
wanted  me  rusticated  for  impudence.  Your 
father  was  at  the  meeting  of   the  faculty,  and 


r>20  IN   RE-TORT. 

hearinc^  tlie  statement  said  :  '  Pooli ;  nothinj^  but 
a  boy's  fun  I '  and  I  was  not  rusticated.  How- 
ever," added  Soliier,  "  Barlow  got  his  pay,  for 
he  turned  out  a  common  drunkard." 

IMr.  Sohier  and  Mr.  Welch,  his  partner,  were 
obliged  to  leave  the  office  which  they  had  occu- 
pied many  years  over  Jacobs  and  Deane,  the 
tailors,  on  Court  Street,  in  order  that  J.  and 
D.  might  enlarge  their  premises.  A  gentleman 
remarked  to  Mr.  Sohier :  "  It  must  be  very  hard 
for  you  to  leave,  having  been  there  so  long." 
"  Well,  well,"  said  Mr.  Sohier  ;  "  our  suits  will 
last  as  long  as  theirs." 

I  said  to  Mr.  Sohier  that  I  thought  the  motto 
of  the  seal  of  the  old  Police  Court,  smim  cuique, 
might  be  better.  "  It  could  n't  be  better,"  said 
Mr.  Sohier  ;  "  sue  'em  quick." 

Mr.  Frederick  W.  Sawyer,  who  had  long 
been  a  practicing  attorney,  organized  a  bank 
called  the  Pawner's  Bank,  of  which  he  became 
president.  I  remarked  to  Mr.  Sohier  that  I 
thought  it  strange  that  Mr.  Sawyer  should  leave 
his  practice  and  go  into  the  banking  business. 
"  Oh,  no,"  said  Mr.  Sohier ;  "  it  is  perfectly 
natural  that  he  should  go  from  the  Sioux  to  the 
Pawnees." 

I  told  Mr.  Sohier  that  I  had  read  in  the  paper 
that  a  dead  whale  was  driven  ashore  at  Nan- 
tucket, and  on  opening  him  a  pair  of  boots  was 


JONAH'S   BOOTS'.  321 

found,  marked    J .      Mr.  Sohier    replied: 

"  They  probably  belonged   to  Jonali ;  he  must 
have  left  them  when  he  stepped  out." 

There  was  a  case  of  one  Coleman  against  the 
New  York  and  New  Haven  Railroad,  in  which 
the  plaintiff  claimed  damages  for  being  rudely 
ejected  from  the  car.  Coleman  was  selling-agent 
for  a  large  firm  in  New  York,  and  in  traveling 
between  New  York  and  Boston  he  often  had 
coupons  left  by  reason  of  stopping  at  inter- 
mediate places.  He  this  time  had  one  in  his 
pocket,  —  "  New  Haven  to  New  York."  He 
entered  the  car  at  New  York,  presented  this 
ticket  to  the  conductor,  and  said  that,  as  he  had 
paid  for  it  from  New  Haven  to  New  York, 
it  ought  to  be  good  from  New  York  to  New 
Haven.  The  conductor  said  he  should  not  take 
it,  and  that  if  Coleman  did  not  pay  his  fare  he 
should  put  him  out.  There  were  a  number  of 
Boston  gentlemen  present,  well  known  to  Cole- 
man and  the  conductor.  Coleman  said :  "  Take 
this  coupon  and  my  name,  and  if  the  proper  au- 
thorities find  fault  with  you  and  refuse  to  take 
it,  I  will  send  you  the  regular  fare."  A  num- 
ber of  Boston  gentlemen  exclaimed,  "  That 's 
fair."  But  the  conductor  refused,  and  at  the 
next  stopping-place  he  came  in  with  four  stout 
brakemen,  and  took  hold  of  Coleman  to  put  him 
out.     Coleman   clung  to  the  cushion,  but  they 


322  JN   RE-TOUT. 

took  liim  out,  seat  and  all,  and  in  his  own  words, 
"  duui})ed  nie  onto  a  platform  like  a  dead  sheep." 
When  the  train  started  he  ran  and  caught  hold 
of  the  steps,  but  they  pushed  him  off.  Mr. 
Edward  D.  Sohier,  who  appeared  for  Coleman, 
spoke  of  the  brutal  force  with  which  the  con- 
ductor and  his  men  put  him  ofp.  The  counsel 
for  the  defendant  said,  "  There  's  no  such  evi- 
dence." "  Is  n't  there,  gentlemen  ?  "  said  Mr. 
Sohier.  "  What  did  the  conductor  say  when  he 
came  in  with  his  men  ?  —  '  Now,  boys,  let 's  put 
him  off.'  I  submit  to  you,  gentlemen,  that  this 
is  force  implied.  I  submit,  further,  that  when 
a  delicate  thing  is  undertaken  it  is  not  cus- 
tomary to  say,  '  Now,  boys,  let 's  do  a  certain 
thing ; '  it  is  only  when  something  desperate  is 
to  be  attempted,  as  when  a  general  leading  a 
forlorn  hoj)e  says,  '  Now,  boys,  let 's  storm  this 
redoubt.'  A  banker  does  not  gather  his  clerks 
round  him  and  say,  '  JVow,  boys,  let 's  go  to  dis- 
counting,' nor  Dr.  Blagden  when  he  rises  from 
the  pulpit,  '  JVaw,  boys,  let 's  read  the  one  hun- 
dred and  nineteenth  psalm.'  " 

One  evening  in  18 — ,  I  went  to  a  stable  to 
hire  a  horse  and  buggy,  and  while  waiting  for 
it  to  be  harnessed  I  heard  a  man  say :  "  I  al- 
ways believe  a  man  to  be  a  d d  rascal  until 

I  find  him  honest."  I  made  up  my  mind  that 
he  was  a  rascal  himself ;  and  as  I   looked  at 


A   PAIR    OF  RASCALS.  323 

him,  I  mentally  took  his  photograph.  His  name 
was  Montgomery.  Shortly  after  this  he  was 
arrested  for  robbing  the  stage  that  carried  the 
box  or  money-bag  of  the  Waltham  Bank,  while 
the"  stage  stood  at  the  post-office.  He  was  con- 
victed and  sent  to  State  Prison.  After  his  con- 
viction, one  William  W.  Wilson,  who  was 
looked  upon  with  suspicion,  in  order  to  retain 
the  money  for  Montgomery,  brought  a  suit  against 
him,  and  summoned  the  Merchants'  Bank,  where 
Montgomery  had  deposited  the  money,  as  trustee. 
Thereupon  the  Waltham  Bank,  by  Sohier  and 
Welch,  its  attorneys,  prayed  to  come  in  as  sub- 
sequent attaching  creditors,  and  were  admitted. 
Wilson,  being  a  skillful  engraver,  had  done  a 
considerable  amount  of  that  sort  of  work  for 
different  manufacturing  companies.  About  the 
time  the  action  was  put  in  for  trial,  Mr.  Welch 
was  going  down  the  court  house  stairs,  when  he 
met  the  treasurer  of  one  of  these  companies, 
whom  he  knew  very  well,  going  upstairs.  He 
asked  him  what  he  was  going  uj)  for.  He  said 
he  was  going  to  testify  how  much  he  paid  Wil- 
son. Mr.  Welch  said  :  "  I  believe  Wilson  is  a 
rascal ;  let 's  look  over  the  papers  and  the  orders, 
and  compare  things  and  see  how  they  stand." 
On  examination  it  was  found  that  he  had  paid 
Wilson  large  suras  on  forged  orders.  At  the 
trial   Wilson   took  the   stand,   and   after  hav- 


321  IN   RE-TOUT. 

ing  given  his  testimony  in  chief,  and  while  Mr. 
Sohier  was  eliciting  from  him  the  statement 
that  he  had  been  overpaid  by  these  forged  or- 
ders, Wilson  fainted,  and  Mr.  John  C.  Adams, 
who  was  his  counsel,  abandoned  the  case.  Thus 
the  Waltham  Bank  recovered  a  large  portion 
of  their  money. 

As  Mr.  Sohier  was  standing  in  the  corridor 
of  the  court  house  one  day,  talking  with  some 
gentlemen,  a  person  with  a  monstrous  nose 
passed  him  to  go  into  the  court  room.  In  a 
few  moments  another  gentleman  came  along,  and, 
bowing,  said  :  "  Can  you  tell  me,  gentlemen,  if 
the  trial  of  the  Roxbury  nuisance  case  comes  on 
to-day  ?  "  "  Yes,  sir,  I  think  it  does  ;  I  saw  an 
expert  on  smells  go  into  court  just  now." 

I  met  Mr.  Sohier  one  morning  near  the  court 
house  steps,  when  Mr.  Benjamin  F.  Hallett  came 
uj?  and  said,  "  Good-morning."  Mr.  Sohier  said, 
"  Well,  brother  Hallett,  how  does  the  world 
treat  you,  nowadays  ?  "  "  Shockingly,  some- 
times," replied  Mr.  Hallett ;  "  the  other  day  a 
man  called  me  Judas  ;  however,  I  did  n't  care." 
Mr.  Sohier  instantly  replied,  "  Well,  but  what 
does  Judas  say  ?  " 

One  day  as  my  predecessor,  Mr.  Josej)h  Wil- 
lard,  was  entering  the  office  together  with  Mr. 
Sohier,  the  latter,  leaning  on  Mr.  Willard,  kindly 
remarked :  "  Now,  if  you  would  only  die,  Wil- 


GOOD   NOTES.  325 

lard,  tlie  inheritance  would  be  ours."  This  was 
when  the  appointment  was  made  by  the  Court, 
and  a  member  of  the  bar  was  sure  to  be  selected. 

Sohier  was  joking  with  William  Brigham 
about  ages,  one  day,  Brigham  being  somewhat 
advanced  in  years,  when  Brigham  said  :  "  Sohier, 
do  you  know  who  I  am  ?  "  "I  know  who  you 
are  not ;  you  are  not  Brigham  Young,"  said 
Sohier. 

Judge  Abbott  and  E.  D.  Sohier  were  talking 
together  one  morning  before  the  Com-t  came  in, 
and  the  judge  spoke  of  a  French  lady  whose  let- 
ters had  been  lately  published,  and  of  whom  it 
was  formerly  said  that  she  had  been  on  too  inti- 
mate terms  with  Napoleon.  Judge  Abbott  said 
it  appeared,  now,  that  all  that  Napoleon  did  was 
to  enter  her  bedchamber  while  she  was  in  bed, 
and,  while  talking  with  her,  pinch  her  toes. 
To  which  Sohier  remarked,  "  He  certainly  pro- 
ceeded to  extremities  with  her."  * 

A  stranger  came  to  Mr.  Sohier's  office  one  day 
and  said,  "  I  brought  a  load  of  lumber  to  town 

and  sold  it  to  Mr.  ,  and  took  his  notes  ;  are 

they  good  ?  "  Mr.  Sohier  replied,  "  He  is  the 
head  singer  at  our  church,  and  I  never  heard 
his  notes  complained  of." 

When  I  first  went  to  the  office  it  was  the  cus- 
tom of  lawyers  to  put  their  Christian  names  on 
their  signs,  as  well  as  the  full  names  of  parties 


326  IN   RE-TORT. 

in  the  writs,  and  not  initials,  as  they  do  now.  I 
think  the  Messrs.  Chandler  were  the  first  ones 
to  introduce  the  innovation  ;  whether  it  was  be- 
cause their  names  were  too  king  or  because  of 
some  other  reason,  I  don't  know  ;  but  they  jnit 
out  their  sign,  "  T.  P.  and  P.  W.  Chandler." 
Some  one  called  Mr.  Sohier's  attention  to  it 
and  said  :  "  What  do  you  suppose  that  means, 
Mr.  Sohier  ?  "  "  Oh,"  said  he,  "  Tad  Pole  and 
Polly  Wog." 

A  witness,  testifying  one  day,  made  many 
grimaces,  writhing  and  twisting  about ;  a  person 
remarked  to  Mr.  Sohier  that  the  witness  looked 
and  acted  as  though  he  were  swallowing  a  shoe- 
maker. Mr.  Sohier  replied,  "  I  don't  know  that 
he  can,  but  he  looks  as  though  he  swallowed  sev- 
eral cobblers  daily." 

One  morning  Mr.  Sohier  came  into  court  and 
there  was  a  man  present  of  large  abdominal  di- 
mensions. He  came  to  me  and  asked  me  who  he 
was.  I  said,  "  He  has  a  lawsuit  here."  "  What 
is  it  ?  "  asked  Mr.  Sohier  ;  "  a  petition  for  parti- 
tion?" I  laughed,  and  said,  "He  is  a  pilot." 
"  Pilot !  "  said  Mr.  Sohier  ;  "  I  should  think  he 
was  Pauncheous  [Pontius]  Pilate." 

Mr.   Sohier  came  to  me  one  day  and  said  : 

"  Willard,  what  kind  of  a  fellow  is  Mr. ?  " 

I  said,  "  He  is  a  very  good  fellow  indeed  ;  hon- 
est and  square,  but  not  a  great  lawyer.    He  is  an 


AN  ADROIT  MAXCEUVRE.  327 

atlilete,  and  sleeps  with  his  window  open  when 
the  mercury  is  twenty  degrees  below  zero.  He 
is  trying  to  be  a  Spartan."  "  Spartan!  "  said  Mr. 
Sohier ;  "  I  should  think  he  was  a  lazy  demon  " 
(Lacedaemon). 

Mr.  Sohier  and  Mr. were  discussing,  in 

my  presence,  the  traits  of  a  certain  judge  then 
on  the  bench.  Mr.  Sohier  was  somewhat  severe 
on  him,  when  tlie  other  said,  "  I  think  you  do 

great  injustice  to  Judge •,  Mr.   Sohier,  for 

his  breast  is  full  of  the  milk  of  human  kindness." 
"  Perhaps  so,"  said  Mr.  Sohier,  "  but  if  it  is,  he 
has  kept  it  on  hand  too  long." 

One  of  the  most  adroit  manoeuvres  that  I 
ever  saw  in  a  trial  of  Mr.  Sohier's  was  this  : 
He  had,  besides  the  jjlaintiff  in  the  case,  a  wit- 
ness whose  reputation  was  not  of  the  best.  He 
called  the  plaintiff  and  made  out  a  2)rima  jfacie 
case.  He  knew  if  he  called  the  wdtness,  he  would 
be  shown  upon  cross-examination  to  be  wholly 
unreliable  ;  and  if  he  did  not  call  him,  there 
would  be  a  great  clamor  from  the  other  side  ;  so 
he  called  the  witness.  "  What  is  your  name, 
sir  ?  "  "  John  B.  Hoogs."  "  Where  do  you  live  ?  " 
"  Boston."  "  How  old  are  you  ?  "  "  Forty  years." 
Turning  to  the  opposite  counsel,  Mr.  Sohier  said, 
"  He  is  3^our  witness,  gentlemen."  The  opposite 
.counsel  hesitated.  The  Court  said,  "  Proceed 
with   the   cross-examination,  gentlemen."     The 


328  7.V   RE-TORT. 

opposite  counsel,  to  use  a  nautical  expression, 
were  taken  quite  aback,  and  said,  "  May  it 
please  your  honor,  we  would  like  a  few  luoinents 
to  consult."  They  did  not  examine  him,  and  Mr. 
Hoogs  left  the  stand.  They  could  not  and  did  not 
argue  that  Mr.  Iloogs  had  not  been  produced 
and  examined. 

I  said  to  Mr.  Sohier  one  day  :  "  Mr.  Sohier, 
you  have  known  me  since  boyhood,  and  I  should 
like  your  photograph."  He  said,  "  I  never  was 
taken,  but  I  have  often  been  mistaken." 

The  first  and  second  sessions  of  the  Superior 
Court  were  on  the  same  floor,  up  three  flights 
of  stairs,  in  the  court  house  which  stands  in 
Court  Square.  Judge  Lord,  who  was  sitting  in 
the  first  session,  beiiig  much  annoyed  by  people 
passing  through  from  the  first  to  the  second  ses- 
sion, ordered  that  the  door  which  was  between 
the  two  sessions,  should  be  closed.  Judge  Vose, 
who  was  presiding  in  the  second  session,  sent  an 
officer  to  the  first  session  to  see  if  John  C.  Park 
were  engaged  there.  Park,  ha\ang  been  notified, 
went  down  the  three  flights  and  up  the  other 
three,  and  came  up  grumbling.  Mr.  Sohier  met 
him  and  said,  "  Park,  what  is  the  matter  ? " 
Park  said,  "  Lord  has  closed  the  doors  against 
us  so  we  can't  get  through."  "  Ah,"  said  Sohier, 
"  that 's  not  the  only  Lord  who  will  close  the 
doors  against  you." 


A    QUKSriOXABLE   PREC ICUENT.  329 

In  conversing  with  me  about  the  different 
traits  of  the  members  of  the  bar,  Mr.  Sohier 
said,  "  Mr.  Willey  was  a  man  with  a  disordered 
vocabulary ;  however,  he  never  hesitated  for 
want  of  a  word." 

As  a  bit  of  special  pleading,  the  following  is 
not  bad.  Mr.  Edward  D.  Sohier  kicked  his 
father's  dog.  Sohier  the  elder :  "  What  did  you 
kick  my  dog  for  ?  "  "  He  bit  me,"  said  Edward 
D.  "  No,  he  did  n't,"  replied  the  father.  "  Then 
I  did  n't  kick  him,"  rejoined  Edward  D. 

In  1869,  some  of  the  judges  of  the  Supreme 
Judicial  Court  resigned  and  became  presidents 
of  insurance  companies.  Mr.  Sohier  said  :  "  It 
seems  that  the  Supreme  Court  is  to  be  aban- 
doned to  the  underwriters." 

There  was  a  well-known  furrier  by  the  name 
of  S.  Klous  who  had  a  case  in  the  trial  list. 
On  looking  the  list  over,  Mr.  Sohier  asked, 
"  When  will  this  case  of  S.  K.  Lous  come  on  ?  " 

Edward  D.  Sohier  told  me  this  of  his  father, 
William  D.  Sohier.  He  was  trying  a  case  before 
Chief  Justice  Shaw  the  day  before  Good  Friday, 
and  asked  if  the  court  would  be  held  to-morrow. 
Shaw:  "Yes,  sir;  why  shoiddn't  it  be  held? 
Is  there  any  precedent  for  not  holding  it ?  "  "I 
don't  know  that  there  is,  sir,  but  there  is  a  prece- 
dent for  holding  it."  "What  is  that,  sir?" 
Mr.  Sohier :  "  Pontius  Pilate,  sir." 


330  IN  RE-TORT. 

In  the  famous  case  of  Burlen  vs.  Shannon, 
Miss  Burlen  sued  Shannon  for  his  wife's  board ; 
Mrs.  Shannon  was  ]\Iiss  Burlen's  sister.  It 
appeared  in  evidence  that  the  first  diffi(!ulty 
between  Shannon  and  his  wife  was  that  she 
wanted  forty  (h)nars  from  Shannon  to  get  Miss 
Burlen  a  new  set  of  teeth  as  compensation  in 
jiart  for  what  she  had  done.  Mr.  Sohier  in 
arguing  to  the  jury  said  :  "  Miss  Burlen  was 
not  content  to  use  up  one  set  of  teeth  at  Shan- 
non's table,  but  wanted  Shannon  to  get  her  a 
new  one." 

Edward  Mellen  was  appointed  justice  of  the 
Court  of  Common  Pleas  in  1847,  Chief  Justice 
in  1854,  and  died  in  1875.  He  was  not  a  care- 
fully dressed  man,  and  his  clothes  hung  on  him 
all  awry ;  as  we  used  to  say  on  board  ship, 
"  Like  a  purser's  shirt  on  a  handspike."  His 
hair  was  unmanageable  and  his  general  appear- 
ance not  polished,  but  he  was  a  good  lawyer. 
Soon  after  his  appointment,  a  shabby-looking 
fruit  peddler  entered  Sohier's  office.  Mr.  Welch 
said  to  him,  "  Get  out  of  this  office."  Mr. 
Sohier  said,  "  Be  careful,  Welch ;  he  may  be  ap- 
pointed justice  of  the  Court  of  Common  Pleas 
to-morrow." 

Mr.  Sohier  once  had  a  horse  which  he  found 
next  to  impossible  to  drive  over  a  bridge.  In 
advertising  him  for  sale  he  stated  that  he  sold 


A   LEGAL    BARD.  331 

him  for  no  fault,  only,  "  Because  the  owner 
wished  to  leave  town."  As  the  only  convenient 
way  of  leaving  Boston  at  that  time  was  to  go  over 
some  bridge,  his  reason  was  substantially  a  true 
one  ;  at  all  events  if  it  had  n't  been  true  he 
would  n't  have  said  so. 

When  I  went  to  the  clerk's  office,  Allen  C. 
Spooner  was  a  leading  practitioner,  a  brilliant 
man,  and  an  excellent  lawyer,  —  who  succumbed 
to  that  great  evil,  intemperance.  He  was 
something  of  a  poet  and  coiUd  extemporize 
verses.  At  the  time  of  the  trial  of  a  Mrs. 
Kinney,  who  was  charged  with  poisoning  her 
husband,  many  people  flocked  to  see  her,  as  she 
was  a  great  beauty.  Spooner  made  the  attempt 
to  see  her,  but  did  not  succeed.  As  he  was 
coming  down  the  stairs  in  the  old  court  house, 
some  one  asked  him,  "  Spooner,  did  you  see 
Mrs.  Kinney  ?  " 

"  No,  for  constables,  d their  souls, 

Stood  all  around  her  with  their  poles." 

He  also  wrote  a  hymn  which  is  in  the  collec- 
tion of  hymns  edited  by  the  Rev.  Frederick 
H.  Hedge  and  the  Rev.  Frederick  D.  Hunt- 
ington. 


332  IN   RE-TORT. 


THE  VOYAGE  OF  LIFE. 

How  often  as  we  beat  along, 
With  wind  ahead  and  bhjwing  strong, 
We  hear  our  watchful  captain  cry, 
"  Near,  nothinj?  off,  and  full  and  by !  " 

So  when  in  life  our  steps  begin 
To  tread  the  devious  paths  of  sin, 
May  conscience  wake  our  timely  fear, 
Uttering  her  warning  cry  of  "  Near !  " 

And  when  from  truth's  unerring  line, 

Our  coward  lips  would  dare  decline. 

Then  may  we  heed,  though  fools  should  scoff, 

Her  stern  injunction,  "  Nothing  off !  " 

Virtue  and  vice  to  win  us  try. 
Be  then  our  watchword,  "  Full  and  by !  " 
Safe  course  through  this  world  to  another, 
Is  "Full "  of  one,  and  "  By  "  the  other." 

Another  of  Mr.  Spooner's  poems,  a  series  of 
hiunorous  verses  entitled  "  Old  Times  and  New," 
runs  as  follows  ^ :  — 

OLD  TIMES  AND  NEW.     (Then  and  Now.  ) 

'T  was  in  my  easy-chair  at  home. 
About  a  week  ago, 
I  sat  and  puffed  my  light  cigar, 
As  usual,  you  must  know. 

^  I  have  lost  or  mislaid  the  copy  given  me  by  Mr.  Spooner, 
and  I  am  indebted  to  Mr.  Hurd,  of  the  Transcript,  for  his 
copy. 


OLD    TIMES   AND   NEW.  333 

I  mused  upon  the  pilgrim  flock 

Whose  luck  it  was  to  land 

Upon  almost  the  only  rock 

Among-  the  Plymouth  sand. 

In  my  mind's  eye  I  saw  them  leave 

Their  weatherbeateu  bark ; 

Before  them  spread  the  wintry  wilds, 

Behind  rolled  ocean  dark. 

Alone  that  little  handful  stood, 

While  savage  foes  lurked  nigh, 

Their  creed  and  watchword,  "  Trust  in  God, 

And  keep  your  powder  dry." 

Imag-ination's  pencil  then 

That  first  stern  winter  painted. 

When  more  than  half  their  number  died, 

And  stoutest  spirits  fainted. 

A  tear  unbidden  filled  one  eye. 

My  smoke  half  filled  the  other. 

One  sees  strang-e  sights  at  such  a  time 

Which  quite  the  senses  bother. 

I  knew  I  was  alone,  but  lo  ! 

(Let  him  who  dares  deride  me) 

I  looked,  and  drawing  up  a  chair 

Down  sat  a  man  beside  me. 

His  dress  was  ancient,  and  his  air 

Was  somewhat  strange  and  foreign, 

He  civilly  returned  my  stare 

And  said,  "  I  'm  Richard  Warren  ; 

You  '11  find  my  name  among  the  list 

Of  hero,  sage,  and  martyr. 

Who  in  the  Mayflower's  cabin  signed 

The  first  New  England  charter. 

I  could  some  curious  facts  impart. 

Perhaps  some  wise  suggestions. 

But  then  I  "m  bent  on  seeing  sights, 

And  running  o'er  with  questions." 


334  1^   RE-TORT. 

"  Abk  on,  "  said  I,  "  I  '11  do  luy  best 

To  <;ive  you  information, 

Whether  of  priv.ite  men  you  ask, 

Or  our  renowned  nation." 

Said  he,  "  First  tell  me  what  is  that 

In  your  compartment  narrow, 

Which  seems  to  dry  my  eyeballs  up 

And  scorch  my  very  marrow  ?  " 

His  finger  pointed  to  a  grate  ; 

Said  I,  "  That 's  Lehigh  coal 

Dug  from  the  earth  ."     He  shook  his  head. 
"  It  is,  upon  my  soul." 

I  then  took  up  a  bit  of  stick  — 

One  end  was  black  as  niglit  — 

And  rubbed  it  quick  across  the  hearth, 

When  lo  !   a  sudden  light. 

My  guest  drew  back,  uproUed  his  eyes. 

And  strove  liis  breath  to  catch. 
"  What  necromancy  's  that  ?  "  he  cried. 

Quoth  I,  ■'  A  friction  match." 

Upon  a  pipe  just  overhead 

I  turned  a  little  screw, 

When  forth  with  instantaneous  flash 

Three  streams  of  lightning  flew. 

Up  rose  my  guest ;  "  Now  heaven  be  saved," 

Aloud  he  shouted  then  ; 
"  Is  that  bell  fire  ?  "  "  'T  is  gas,"  said  I. 
"  We  call  it  hydrogen." 

Then  forth  into  the  fields  we  strolled ; 

A  train  came  thundering  by, 

Drawn  by  the  snoi'ting  iron  steed 

Swifter  than  eagles  fly. 

Rumbled  the  wheels,  the  whistle  shrieked, 

Far  streamed  the  smoky  cloud  ; 

Echoed  the  hills,  the  valley  shook, 

The  flying  forests  bowed. 


OLD    TIMES    AXD    NEW.  335 

Down  on  liis  knees  with  hands  upraised, 

In  worship  Warren  fell. 
*'  Great  is  the  Lord  our  God,"  cried  he, 
"  He  doeth  all  things  well. 

I  've  seen  his  chariots  of  fire, 

His  horsemen  too  thereof. 

Oh,  may  I  ne'er  provoke  his  ire 

Or  at  his  threatenings  scoff !  " 
"  Rise  up,  my  friend,  rise  up,''  said  I ; 
"  Your  terrors  all  are  vaiu  ; 

That  was  no  chariot  of  the  sky, 

'T  was  the  New  York  mail-train." 

We  stood  within  a  chamber  small ; 

Men  came  the  news  to  know, 

From  Worcester,  Springfield,  and  New  York, 

Texas,  and  Mexico. 

It  came,  it  went,  silent  but  sure, 

He  stared,  smiled,  burst  out  laughing ; 
"  What  witchcraft 's  that  ?  "  "  It 's  what  we  call 

Magnetic  telegraphing." 

Once  more  we  stepped  into  the  street. 

Said  W^arren,  "  What  is  that 

Which  moves  along  across  the  way, 

As  softly  as  a  cat '? 

I  mean  the  thing  upon  two  legs 

With  feathers  on  its  head, 

A  monstrous  hump  below  its  waist. 

Large  as  a  feather  bed  ; 

It  has  the  gift  of  speech,  I  hear. 

But  sure  it  can't  be  human  ?  " 
"My  amiable  friend,"  I  said, 
"  That 's  what  we  call  a  woman." 
"  Eternal  Powers,  it  cannot  be," 

Sighed  he  with  voice  that  faltered  ; 
"  I  loved  a  woman  in  my  day, 

But  oh,  they're  strangely  altered." 

I  showed  him  then  a  new  machine 


336  /A'  iii:-TORT. 

For  tumiiifr  epps  to  chickens, 

A  labor-suviii};-  hennery 

That,  beats  the  very  dickens. 

Thereat  lie  sti'ongly  grasped  my  hand 

And  said,  "  'T  is  plain  to  see 

This  world  is  so  transmogrified 

'T  will  never  do  for  me. 

Your  telegrai)h,  your  railroad  trains, 

Your  gaslights,  friction  matches. 

Your  hump-backed  women,  rocks  for  coal, 

Your  thing  which  chickens  hatches. 

Have  turned  the  earth  so  upside  down 

No  peace  is  left  within  it." 

Then  whirling  round  upon  his  heel 

He  vanished  in  a  minute. 

Forthwith  my  most  veracious  pen 

Wrote  down  what  I  had  heard, 

And  here  dressed  up  in  doggerel  rhyme 

You  have  it  word  for  word. 

A  clever  remark  of  Spooner's  I  have  heard 
attributed  to  others,  but  as  I  happened  to  be 
present  on  the  occasion,  I  give  it  place  here. 
Judge  George  T.  Bigelow,  afterwards  our  es- 
teemed Chief  Justice,  was  once  holding  the 
Court  of  Common  Pleas  in  Boston.  One  of 
Spooner's  witnesses  had  not  appeared,  and  Judge 
Bigelow  insisted  every  few  minutes  that  Mr. 
Spooner  must  go  on,  —  Spooner  making  various 
excuses  for  his  witness  and  pleading  for  time. 
At  last  Judge  Bigelow  said,  "  Mr.  Spooner, 
you  must  go  on ;  this  Court  sits  here  for  the  dis- 
patch of  business.".    Spooner,  rising  in  a  very 


A    SHREWD    ATTORNEY.  3^7 

dignified  manner,  replied,  "  May  it  please  your 
lionor,  I  tliouglit  the  Court  sat  here  for  the  ad- 
ministration of  justice." 

A  special  justice  for  tlie  Police  Court  was 
created  by  the  Legislature  to  take  the  place  of 
Judge  Wells,  who  had  gone  to  the  civil  war. 
It  was  said  that  it  was  offered  to  Charles  W. 
Storey,  who  declined  it ;  and  when  asked  why 
he  did  so  he  replied,  "  People  will  say  Judge 
Storey  decided  so  and  so,  and  it  will  be  asked, 
'  What  Judge  Storey  ? '  '  Why,  Judge  Storey  of 
the  Police  Court.'     '  Oh, his  decision.'  " 

In  1888,  Mr. came  from  Portland,  where 

he  had  been  very  successful,  to  practice  at  the 
Suffolk  bar.  A  gentleman  who  had  known  him 
in  Portland  asked  me  if  I  had  ever  heard  Mr. 

try  a  case.      I  told  him,  "  No."      "  You 

will  find  him  very  adroit  in  the  examination  of 
witnesses,  and  very  plausible  in  his  remarks  to 
the  jury,"  he  said ;  and  he  related  to  me  the  fol- 
lowing:  Mr.  and  an  attorney  whom  we 

will  call  Smith,  were  trying  a  case,  and  at  the 
adjournment  of  the  court  in  the  evening  the  evi- 
dence was  closed.  The  next  morning  at  the 
assembling  of  the  court,  the  judge  said,  "  Pro- 
ceed with  your  remarks  to  the  jury,  Mr.  Smith." 
Smith  took  no  notice  of  it.     Two  or  three  min- 


o38  IN  RE-TORT. 

utes  elapsed,  when  the  judge  remarked,  "  Did  n't 
you  hear  me,  Mr.  Smith ;  I  said  proceed  with 
your  case."     Mr.  Smith,  rising,  said,  "  May  it 

please   your   honor,  brother is   not  ready 

yet."     Mr. arose  and  protested,  and  said 

he  was  ready.     Mr.  Smith  said,  "  I  think,  your 

honor,  notwithstanding  what  brother says, 

he  is  not  ready."  "  Why  do  you  think  so  ?  " 
asked  the  judge.  "  Why,  may  it  please  your 
honor,"  said  Smith,  "  there  is  one  juryman  that 
brother has  not  shaken  hands  with  yet." 

Horatio  B.  Swasey  and  Edwin  B.  Hale  were 
trying  a  case  opposed  to  each  other.  In  closing, 
Swasey's  remarks  as  to  Hale's  ability  were  very 
eulogistic.  Hale  took  a  five-dollar  bill  from 
his  pocket  and  said,  "  Brother  Swasey,  I  think 
that  is  worth  five  dollars."  Swasey  took  it  and 
put  it  in  his  pocket.  When  Hale  addressed  the 
jury,  his  remarks  were  in  the  same  vein  as  Swa- 
sey's, and  perhaps  more  flattering,  and  Swasey 
took  from  his  pocket  the  five  dollars,  saying, 
"  Brother  Hale,  I  think  you  have  earned  your 
five  dollars  back,"  and  returned  it  to  him. 

Colonel  Thomas  was  arguing  a  case  in  which 
he  was  seeking  to  recover  wages  for  a  sailing- 
master  of  a  yacht.  It  was  in  evidence  that  the 
yacht  was  abundantly  provided  with  everything 


A   DELIBERATIVE   HORSE.  339 

good,  plenty  of  liquor,  etc.  The  colonel  inad- 
vertently said,  "  This  steani-yaclit,"  Hobbs,  the 
opposing  counsel,  said,  "  She  is  n't  a  steam- 
yacht."  Colonel  Thomas  :  "  There  was  consid- 
erable steam  on  board." 

Mr.  S.  J.  Thomas  :  "  Well,  gentlemen,  some 
people  are  bald,  but  it  is  said  that  the  Chief 
Justice  of    the  Supreme    Court  is   prematurely 

Colonel  Thomas  brought  a  suit  for  damages 
for  fraud  in  the  sale  of  a  horse,  and  told  the 
jury  that  the  horse  had  too  much  deliberation  ; 
that  is,  he  would  n't  go.  Mr.  William  S. 
Stearns,  the  opposing  counsel,  said  he  should  ask 
for  a  view.  Viewing  a  horse  because  he  had 
too  much  deliberation  was  too  much  for  the 
Court,  jury,  and  audience,  and  a  suppressed  tit- 
ter went  round  the  court  room. 

Robert  M.  Morse  submitted  to  the  Court 
certain  prayers  for  instruction  to  the  jury.  Mr. 
Shattuck,  the  opposing  counsel,  after  reading 
them,  said,  "  These  prayers  are  very  ambiguous." 
Colonel  Thomas,  sitting  by,  said,  "  Most  prayers 
are,  I  believe." 

Colonel  Thomas  was  once  defending  a  man 
who  was  sued  for  the  price  of  a  horse,  and  the 
defense  was  that  the  horse  had  the  heaves.  He 
put  on  a  well-known  stable-keeper,  and  after 
a  few  introductory  questions  asked,  "Mr. , 


340  IN   RE-TORT. 

do  you  know  this  horse  described  here  ? " 
"  Yes,  sir,  I  know  him."  "  How  long  have  you 
kept  a  stable  in  Boston  ?  "  "  Forty  years  suc- 
cessfully." "  What  was  the  matter  with  this 
horse  ?  "  "  Why,  colonel,  I  can't  give  you  the 
botanical  name  of  the  disease,  but  we  stable-men 
call  it  the  heaves."  " Is  there  any  cure  for  it? " 
asked  Colonel  Thomas.  "  Yes,  sir,"  said  the 
witness.  Colonel  Thomas  was  somewhat  stag- 
gered, knowing  that  there  was  not ;  but  after 
such  an  answer  he  found  he  had  put  his  foot  in 
it  and  must  go  on.  He  said,  "  What  is  it  ?  " 
"  Take  a  big  knife,  colonel,  and  [suiting  the 
action  to  the  word]  begin  back  of  his  ear,  and 
cut  till  you  reach  his  throat." 

In  1856,  the  United  States  Court  with  its 
officers  took  a  building  fronting  on  Bowdoin 
Square,  corner  of  Chardon  Street,  —  the  Park- 
man  House.  After  leaving  that,  they  went  to 
the  old  Masonic  Temple,  where  they  remained 
until  they  removed  to  their  own  building  in 
Post  Office  Square.  While  the  United  States 
Court  was  held  in  the  Parkman  House,  Colonel 
Thomas  wrote  to  the  authorities  at  Washington 
that,  "  No  judge  can  hope  to  be  respected  who 
holds  his  court  in  a  pig-sty." 

An  agreement  was  brought  into  my  office  for 
judgment    for    a   certain    sum    and     "  accrued 


A   SELF-MADE   MAN.  .'Ul 

costs."  As  the  previous  Legislature  had  changed 
the  law  as  to  costs,  a  question  arose  as  to  whe- 
ther this  meant  costs  ah  initio.,  or  costs  under 
the  new  law.  As  Mr.  J.  B.  F.  Thomas  was 
standing  by  me  when  I  was  examining  the 
paper,  I  asked  him  to  look  at  it  and  tell  me 
what  he  thought  of  it.  "  Accrued  costs !  "  he 
said ;  "  I  think  I  should  send  it  back  as  being 
a  crude  agreement." 

Among  the  occupants  of  the  Tudor  building, 
which  stood  on  the  corner  of  Court  Square 
where  Young's  Hotel  is  now,  were  Charles  G. 
Thomas,  B.  F.  Hallett,  Hutchins  and  Wheeler, 
D.  H.  Mason,  Tolman  Willey,  and  F.  W.  Saw- 
yer. At  that  time  all  these  men  were  promi- 
nent advocates,  and  some  one  of  them  was 
engaged  every  day  in  the  Court  of  Common 
Pleas.  Harvey  D,  Parker  kept  a  restaurant 
underneath. 

Charles  G.  Thomas,  who  practiced  a  great 
many  years  at  the  Suffolk  bar,  told  me  that  he 
was  born  in  Denmark,  N.  Y.,  and  was  brought 
up  as  a  charcoal-burner.  He  grew  fond  of 
study,  and  got  an  appointment  as  lighthouse 
keeper  somewhere  at  Martha's  Vineyard,  —  I  'm 
not  sure  that  it  was  not  Holmes's  Hole  ;  the 
name.  Hole,  means  an  indenture  in  the  coast. 
He  fitted    himself  for  college  while  there,  and 


342  yA'  RE-TOitr. 

finally  was  admitted  to  the  Suffolk  bar.  He 
was  a  very  persistent  and  studious  man,  Lut 
never  became  a  great  lawyer.  Occasionally  he 
was  quite  absent-minded.  I  remember  one  day 
when,  after  he  had  closed  his  argument,  some 
thought  occurred  to  him,  and  as  the  judge  was 
beginning  the  charge  he  suddenly  jumped  to 
his  feet  and  cried  out :  "  Stop,  stop !  hold  on 
there !  That  is,  your  honor,  I  have  forgotten 
something  I  wished  to  say."  At  this  time  the 
counsel  talked  as  long  as  they  pleased  in  their 
closing  argument  to  the  jury,  and  in  the  above 
case,  which  was  brought  to  recover  seventy  dol- 
lars demurrage  money  for  Mr.  Tudor,  who  was 
the  plaintiff,  Mr.  Thomas  spoke  three  hours, 
and  Mr.  William  Hayden,  editor  of  the  "  Boston 
Atlas,"  who  was  foreman  of  the  jury,  sent  me 
this  Jew  d' esprit:  — 

"  It  requires  of  each  juror  most  uncommon  courage 
To  listen  to  Thomas's  plea  on  demurrage. 
If  Tudor  gets  off  from  this  trial  secure, 
He  '11  do  it  in  spite  of  his  counsel,  I  'm  sure." 

Thomas  told  the  jury  he  thought  they  would 
give  him  a  verdict  in  fifteen  minutes.  They 
were  out  about  five,  and  returned  a  verdict 
against  him. 

George  A.  Torrey  in  closing  a  case  for  the 


UNPROFITABLE    SERVANTS.  343 

defendant  said  :  "  Now,  gentlemen  of  the  jury, 
you  see  that  this  writ  is  signed  by  my  friend 
Mr.  Willard,  the  clerk  of  this  court.  The  ad 
damnum  as  we  call  it,  the  amount  claimed  in 
this  writ,  is  fSOOO.  There  is  a  legend  in  this 
court  house  that  the  jurors  think  Mr.  Willard 
would  not  sign  a  paper  summoning-  a  defendant 
into  court  to  answer,  unless  he  knew  the  plain- 
tiff to  be  a  respectable  man  and  entitled  to 
recover  the  amount  sued  for,  and  that  Mr.  Wil- 
lard actually  wants  the  plaintiff  to  recover  what 
he  asks.  Now  I  wish  to  disabuse  your  minds  of 
this.  Mr.  Willard  signs  all  those  writs,  and  we 
lawyers  when  we  issue  one  put  in  what  amount 
we  choose,  and  Mr.  Willard  knows  nothing  of 
it." 

Attorney-General  Marston  and  Charles  R. 
Train,  who  was  Marston's  immediate  prede- 
cessor in  the  office,  were  trying  a  case  op- 
posed to  each  other  in  which  the  late  Mr.  David 
Pulsifer,  the  transcriber  of  records  at  the  State 
House,  was  a  witness.  Mr.  Marston  asked  Pul- 
sifer how  much  work  he  had  done  for  the  Com- 
monwealth for  the  past  sixteen  jears.  Pulsifer : 
"  Nothing  to  boast  of ;  we  are  unprofitable  ser- 
vants." Mr.  Train  :  "  As  far  as  brother  Mars- 
ton is  concerned,  I  agree  to  that." 


344  IN   RE-TORT. 

J.  L.  Enj^lisli  was  examining  a  witness  in  a 
cause  in  which  both  parties  were  Irish,  and 
Francis  O.  Irish,  deputy  sheriff,  was  a  witness. 
Mr.  Treanor  said :  "  If  you  are  done,  Mr.  Eng- 
lish, we  will  now  take  Mr.  Irish." 

Mr.  Van  Duzee,  arguing  to  the  jury,  said : 
"  Gentlemen,  the  statutes  say  so  and  so,  but  it  is 
no  use  to  argue  the  statutes  to  you  ;  you  under- 
stand them  as  well  as  I  do,  — almost." 

My  father  told  me  an  anecdote  of  Daniel 
Webster  which  I  have  never  seen  printed.  He 
had  a  boatman  who  was  inclined  to  tell  large 
stories,  sometimes  exceeding  the  truth.  My 
father  was  with  Mr.  Webster  and  a  party  of 
gentlemen  on  a  fishing  excursion,  and  the  con- 
versation at  one  time  was  about  amphibious 
animals.  The  boatman  waited  for  his  chance, 
and  when  Mr.  Webster  stepped  a  little  to  one 
side  said  :  "  Mr.  Webster,  what  is  an  amphiber- 
ous  animal?"  "John,"  replied  Mr.  Webster, 
"  an  amphibious  animal  is  an  animal  which  lies 
on  the  water  and  lies  on  the  land." 

Samuel  Wells,  formerly  governor  of  Maine, 
who  had  also  been  judge,  tried  a  case  with  Mr. 
R.  H.  Dana  for  his  oj)ponent.  He  read  a  letter 
written  by  Mr.  Dana's  client  which  was  quite 
difficult  to  decipher,  and  Mr.  Dana  said,  "  Let 


AN    UNCERTAIN  SOUND.  345 

me  have  it,  judge."  Whereupon  Mr.  Dana  read 
it  quite  differently,  and  after  having-  read  it  said  : 
"  Your  excellency  must  not  come  up  here  from 
Maine  to  teach  us  Boston  gentlemen  how  to 
read."  Shortly  after,  Judge  Wells  offered 
some  other  evidence,  when  Mr.  Dana  said : 
"I'll  admit  that."  "  Thank  you,"  said  Judge 
Wells ;  "  I  would  rather  prove  it.  '  Timeo 
Danaos  et  dona  ferentes.^  " 

In  one  case  the  judge  said  that  Mr.  Dana 
kept  shifting  his  ground.  Mr.  Dana  said  that 
he  (Mr.  D.)  had  made  a  certain  statement  at 
the  commencement  of  the  trial.  Judge  Wells 
replied  that  he  had  said  no  such  thing.  Then 
Dana  said :  "  I  shall  have  to  blow  a  trumpet 
before  me,  that  my  friend  on  the  other  side  may 
hear  me."  Judge  Wells :  "  Your  trumpet  gives 
a  very  uncertain  sound." 

During  the  trial  of  a  horseshoe  patent 
case,  the  same  counsel  were  opposed.  Judge 
Wells  was  reading  law  to  the  Court.  Mr. 
Dana :  "I  did  n't  catch  that  last  sentence." 
Wells :  "  Never  mind,  sir  ;  you  '11  catch  enough 
before  I  'm  done."  Dana,  in  speaking  of  a 
word  which  the  judge  had  used,  thought  he  had 
employed  it  wrongly,  and  said,  "  His  excellency 
has  misapplied  it."  Wells :  "  I  suppose  we 
may  use  such  words  as  we  please."  Dana : 
"  Oh,  yes,    it    is    the    prerogative    of    office." 


346  IN  RE-TORT. 

Wells  :  "  You  wrote  a  book  once,  and  employed 
or  coined  some  strange  words."  Dana :  "  I 
pray  you,  do  not  visit  the  sins  of  my  youth 
upon  me." 

As  I  was  putting  on  my  spectacles  to  look  at 
the  docket,  I  said  to  my  kinsman,  Mr.  Joseph 
Willard,  who  was  standing  by  :  "  My  eyes  don't 
get  any  better."  "And  so  you  try  eyes-in- 
glass,"  said  he. 

I  asked  Mr.  Willard  who  his  opponent  was 
in  a  certain  case.  He  said :  "  Stillman  B. 
Allen,  with  any  other  judge  than  Judge  Al- 
drich,  and  then  it  is  Allen  B.  Stillman.^' 

Mr.  Joseph  Willard  :  "  What  does  this  letter 
'  t '  mean  on  the  margin  of  the  docket  ?  "  "  This 
black  one  means  trial  in  October,  a  blue  '  t '  for 
January,  and  a  red  '  t '  for  April."  "  We  ought 
to  have  a  little  green  '  t '  occasionally,"  he  said. 

Tolman  Willey,  Esq.,  was  a  remarkable  man 
in  his  way.  He  was  not  a  profound  lawyer,  but 
an  excellent  advocate  when  he  had  a  good  case, 
although  sometimes  he  damaged  it  by  his  scath- 
ing remarks.  He  was  never  at  a  loss  for  a  word, 
and  his  face  invariably  wore  an  intensely  sar- 
castic expression.  He  used  some  of  the  most 
remarkable,  extravagant,  and  unique  phrases 
and  figures  of  speech.     He  was  always  neatly 


THE   INGRATITUDE   OF  REPUBLICS.      347 

dressed  in  black,  except  perhaps  a  buff  or  white 
vest ;  he  wore  a  standing  collar,  and  a  big 
bandanna  handkerchief.  A  friend  of  mine  and 
of  his  writes  nie  of  him  thus :  "  He  was  above 
medium  height,  portly,  and  of  excellent  physique 
and  figure,  and  of  great  magnetism  of  person. 
He  was  of  the  old  school  of  elegant  manners ;  not 
a  cultivated  but  a  thoroughly  born  gentleman, 
who  never  could  possibly  forget  himself.  His 
dress  was  perfection  and  his  walk  ex  jicde  Her- 
culem,!  without  meaning  or  knowing  it.  His 
eyes  were  expressive  and  kindly,  and  his  voice 
most  charming.  He  never  halted  for  a  word, 
and  his  speech  was  the  delight  of  the  bar,  who 
always  flocked  to  hear  him.  He  would  startle 
the  world  with  his  antitheses  and  comparisons, 
and  there  was  no  greater  master  of  invective 
when  (but  only  when)  the  occasion  called  it 
out." 

Towards  the  end  of  the  Know-Nothing  period, 
Major  Cobb  was  very  extensively  engaged  in  a 
political  campaign,  and  as  the  agent,  secretary, 
or  some  other  official  of  the  party  which  he  was 
serving,  he  had  a  number  of  flaming  political 
handbills  printed.  The  Messrs.  Farwell,  who 
printed  them,  found  it  difficult  to  get  their  pay 
from  the  party,  and  brought  an  action  against 
Major  Cobb  to  recover  the  price  for  the  print- 
ing of  the  bills.     Mr.  Willey  defended.     In  the 


348  IN  RE-TORT. 

course  of  his  remarks  to  the  jury  as  to  the  in- 
gratitude of  the  people  towards  politicians,  and 
referring  to  Daniel  Webster,  whom  he  almost 
worshiped,  he  uttered  the  following:  "Like 
that  immortal  man  who  set  a-going  all  the 
spindles  on  the  rivers  of  the  Commonwealth, 
was  driven  to  his  two  thousand  acres,  and  went 
down  there  to  his  home  by  the  sea  the  other 
day,  and  dug  his  own  grave,  and  then  was  trans- 
formed into  a  block  of  gi-anite  and  stuck  up  in 
the  State  House  j^ard,  in  the  model  of  some 
Kentucky  giant  with  a  bundle  of  canebrake 
under  his  arm,  and  a  touch  of  spasmodic  colic, 
leaning  against  a  post  —  there  's  honor  for  poli- 
ticians. Major  Cobb,  foreseeing  this,  left  the 
party." 

Again  he  said  :  "  Major  Cobb,  after  joining 
the  military  and  politics,  found  that  he  was  like 
the  gentleman  who  undertook  the  journey  from 
Jerusalem  down  to  Jericho ;  he  fell  among 
thieves  who  stripped  him  and  left  him  half 
dead." 

In  the  same  case,  in  endeavoring  to  get  a  wit- 
ness, who  testified  that  there  were  two  wings 
of  the  American  party,  to  say  that  they  both 
worked  for  the  same  object  although  ostensibly 
opposed,  Mr.  Willey  asked :  "  Did  n't  both 
wings  brood  over  the  same  egg  in  the  dark  ?  " 

In  a  certain  case  on  trial,  Mr.  Abraham  A. 


STATING    THE    WHOLE    CASE.  349 

Dame  took  the  stand  as  a  witness.  Mr.  Willey 
cross-examined  liim.  "How  many  times  have 
you  been  a  witness  in  your  own  cases  ?  "  Mr. 
Dame  :  "  I  have  refused  to  be  a  witness  a  great 
many  times,  when  if  I  had  testified  for  my 
client  I  shouhl  have  got  the  case."  Mr.  Willey 
(sternly)  :  "  Does  n't  that  depend  on  another 
fact,  sir?"     "  Ah,  yes,  sir." 

Once  in  arguing  a  case,  and  speaking  of  the 
financial  difficulties,  he  said  :  "  It  was  the  crash 
that  crushed  the  commercial  community." 

S.  J.  Thomas,  Esq.,  once  told  Mr.  Willey  that 

he  (Thomas)  was  trying  a  case  in  which 

Lewis  was  a  defendant ;  that  Lewis  was  rather 
roguish,  and  that  Nathaniel  Richardson,  Esq., 
was    Lewis's    counsel.       "  Yes,"    said  Willey ; 

"  Lewis   is    a    d scoundrel  ;    he    has    good 

counsel,  and  he  ought  to  have  Dr.  Brown  for 
a  family  physician."  Dr.  Brown  had  been 
lately  convicted  of  some  heinous  offense  in  the 
Criminal  Court,  and  was  somewhat  notorious. 

In  arguing  a  motion  for  a  new  trial  in  which 

Mr. was  opposed  to  him,  Mr.  Willey  made 

use  of  the  following  language  :  "  I  hope  I  am 
not  small  enough  to  try  half  my  case.  If  a 
man  has  not  mind  enough  to  stretch  from 
plaintiff  to  defendant,  and  state  the  whole  of  his 
case,  he  is  not  large  enough  to  be  intrusted  with 
the  consideration  of  a  toothpick.     If  a  man  had 


350  IN  RE-TORT. 

passed  a  post  where  a  decent  lawyer  had  hitched 
his  horse,  he  would  know  that  what  the  gentle- 
man states  is  not  law." 

Mr.  said  that testified  that  he  was 

a  member  of  the  firm.  Willey :  "  What  firm 
was  he  a  member  of  ?  That  firm  is  ancient,  — 
ancient  as  Eve ;  the  gentleman's  argument  con- 
sisted of  lean,  famished  adjectives,  repeated  for 
an  hour." 

Mr.  Willey  asked  a  witness  if   his    counsel 

advised    him    to  make    a  tender.       Mr.  : 

"  I  should  have  been  very  foolish  to  have  thus 
advised  him."  Mr.  Willey  :  "  You  should  not 
volunteer  your  wisdom  until  you  loiow  in  what 
estimation  we  hold  it." 

Arguing  a  case  one  day  with  Mr.  Abraham 
A.  Dame  for  his  opponent,  Mr.  Willey  said  : 

"  Nobody   finds   fault    with  's  testimony." 

"Yes,"  said  Mr.  Dame,  "I  do."  "Well,"  re- 
torted Willey,  "  I  meant  you  when  I  said  no- 
body." 

He  was  sometimes  hasty  in  interrupting  a 
witness  before  he  had  fully  answered ;  and  in 
doing  so  one  day,  his  opponent  being  Colonel 
Seth  J.  Thomas,  the  latter  with  some  warmth 
said:  "Let  the  witness  answer."  "You  are 
exquisitely  courteous,"  replied  Willey. 

At  one  time  Mr.  Daniel  F.  Fitz  was  a  part- 
ner with  Mr.  Willey.     Mr.  Fitz,  who  is  small 


A    WANDERING    MINSTREL.  351 

in  stature  and  a  fine  singer,  belonged  to  the 
well-known  "  Masonic  Quartette."  Mr.  Willey 
being  in  search  of  him  one  morning  came  to  me 
and  said  :  "  Willard,  have  you  seen  anything  of 
my  little  wandering  minstrel  this  morning  ?  " 

Mr.  Somerby  offered  some  evidence  in  a  case 
which  he  was  trying,  to  which  Mr.  Willey,  his 
opponent,  objected,  calmly  stating  his  objections. 
Mr.  Somerby  arose  with  much  feeling,  urging 
his  point,  making  a  great  display  and  noise,  and 
sat  dow^^.  Mr.  Willey:  "May  it  please  your 
honor,  I  have  not  seen  the  parallel  to  this  since 
the  death  of  Cock  Robin." 

Mr.  J.  L.  English,  who  was  counsel  for  Mr. 
Jacob  Stan  wood,  a  large  ship-owner,  invited 
me  to  go  down  in  the  Maid  of  the  Sea,  with 
her  owner,  Mr.  Stanwood,  and  a  party  of  gentle- 
men, as  far  as  Minot's  Light,  requesting  me  to 
extend  his  invitation  to  Mr.  Willey.  Returning, 
and  as  it  was  somewhat  misty,  we  all  went  be- 
low in  the  forecastle  of  the  tug,  and  speeches 
were  called  for  from  different  members  of  the 
company.  Mr.  Willey,  who  was  brilliant  on  a 
cold-water  diet,  but  who  had  taken  too  much 
medicine  to  keep  down  seasickness,  was  an  en- 
tirely different  man.  The  crowd  shouted  for 
Mr.  W^illey ;  he  rose  and  said :  "  Gentlemen, 
Stanwood  is  a  trump ;  English,  a  mere  appen- 
dage." 


352  JX  RE-TORT. 

Mr.  AVillcy  was  examining  a  female  witness. 
"  What  did  you  say  your  name  was?  "  Witness: 
"  Coral."     Willey  :  "  Is  it  music  or  mineral  ?  " 

Mr.  Willey  was  trying  a  case  with  Mr.  Abra- 
ham A.  Dame  as  the  opposing  counsel.  Mr. 
Dame  produced  two  witnesses  who  were  so 
similar  in  appearance  that  it  was  difficult  to 
distinguish  them.  They  were  called  and  re- 
called, and  Mr.  Willey  was  somewhat  confused 
as  to  which  one  he  was  examining.  He  asked 
a  question  of  one,  when  Mr.  Dame  said :  "  He 
does  n't  know  anything  about  that ;  it  is  the 
other  one."  "How  do  you  know?"  said  Wil- 
ley. Dame  said  :  "  You  've  got  the  wrong  one  ; 
they  're  twins."  Said  Willey :  "  Were  you 
present  at  the  birth  ?  You  're  a  fit  midwife  to 
have  been  there." 

He  came  to  me  one  day,  and  complained  that 
Mr.  Somerby  had  retained  him  in  a  number  of 
insurance  cases,  and  had  agreed  to  pay  him  five 
hundred  dollars.  He  said  he  asked  Mr.  Som- 
erby to  come  to  his  office  and  talk  the  matter 
over,  and  that  he  came.  Willey  said :  "  He 
cursed  and  swore,  and,  though  two  years  have 
elapsed  since  that  interview,  my  office  is  redo- 
lent with  the  blasphemy  of  that  creature  to-day." 

A  tall  and  formerly  a  well-known  member  of 
the  bar  was  one  day  making  some  motion  before 
the  Court,  in  his  usual  noisy,  blustering  way.    It 


INIMITABLE   MANNERS.  353 

may  as  well  be  said  the  man  was  unpopular. 
Mr.  Willey  happened  to  be  sitting  by  the  side 
of  a  friend,  another  lawyer,  both  looking  on. 
The  latter  made  some  observation  to  Mr.  Willey 
about  the  person  addressing  the  Court,  when 
Willey  said :  "  Richard,  do  you  know  that  for 
nineteen  years  that  d giraffe  has  been  prowl- 
ing about  this  bar,  lapping  the  dew  from  every 
green  thing  that  grows  ?  " 

Mr.  Willey  brought  a  suit  against  Mr.  Som- 
erby  to  recover  an  amount  which  Somerby  had 
promised  him  as  a  retainer,  and  while  Willey 
was  gone  to  Europe  the  lawyers  in  the  case 
caused  "  neither  party  "to  be  entered.  When 
he  returned,  he  made  a  motion  to  vacate  the 
entry  of  neither  party  and  to  restore  the  action 
to  the  docket.  It  was  heard  in  the  judge's 
room  before  Mr.  Justice  Colburn.  Theodore 
Sweetser  acted  for  Somerby,  and  Mr.  Willey 
for  himself.  Mr.  Sweetser  asked  Mr.  Willey 
some  questions,  and  Mr,  Willey  was  rather  dis- 
cursive. Mr.  Sweetser,  with  quite  a  rough 
manner,  striking  the  table  heavily  with  his 
clenched  hand,  said :  "  For  God's  sake,  Mr. 
Willey,  can't  you  give  us  a  categorical  answer  ?  " 
Mr.  Willey,  who  was  seated  in  a  chair,  rose,  and, 
extending  both  hands  and  bending  low,  replied, 
"  Mr.  Sweetser,  1 11  do  anything  but  copy  your 
inimitable  manners." 


554  J^'   RE-TORT. 

At  the  same  hearing,  while  Mr.  Somerby  was 
being  examined,  Mr.  Willey  said :  "Just  here  I 
would  like  to  ask  one  question,  merely  for  the 
purpose  of  fixing  a  date.  Was  this  about  the 
time,  Mr.  Somerby,  when  you  bought  out  the 

office  of  brother ,  with  all  its  practices  and 

appurtenances  ?  \^8otto  voce]  —  merely  for  the 
purpose  of  fixing  a  date  !  " 

One  day,  when  wishing  to  see  Mr.  Willey's 
partner,  Mr.  Fitz,  whose  small  stature  has  been 
previously  mentioned,  I  asked  Mr.  Willey,  who 
was  in  the  court  room,  if  he  knew  where  I 
coidd  find  Mr.  Fitz.  He  replied  :  "  I  have  n't 
the  slightest  idea  where  the  little  cockroach 
is." 

Mr.  William  Whiting,  who  was  opposed  to 
Mr.  Willey  in  a  case,  remarked,  "  If  I  should 
make  such  a  proposition  it  would  make  every 
hair  on  brother  Willey's  head  stand  on  end." 
After  that  there  was  a  marked  coolness  on  the 
part  of  Mr.  Willey  towards  Mr.  Whiting,  and 
at  one  time  Mr.  Willey  put  his  hand  over  Mr. 
Whiting's  mouth  in  open  court  as  Mr.  Whiting 
was  asking  a  question.  Mr.  Whiting  inquired 
of  his  own  partner,  Mr.  William  G.  Russell, 
what  had  made  Mr.  Willey  so  unfriendly. 
Then  Mr.  Russell  inquired  and  learned  what 
Mr.  Whiting  had  said.  "  What 's  that  to  do 
with  it  ?  "  asked  the  latter.   Mr.  Russell  replied : 


PROFESSIONAL    COURTESIES.  355 

"  Everything ;  lie  thought  you  meant  to  insult 
him,  as  brother  Willey  wears  a  wig." 

Years  ago  there  was  a  woman  exhibited  in 
Boston  who  was  remarkably  thin,  and  almost  a 
skeleton.  She  was  called  Joyce  Heth,  and  was 
said  to  be  over  one  himdred  years  old  and  to 
have  been  a  nurse  o£  George  WashinQ-ton.  Mr. 
Willey,  criticising  the  character  of  a  witness  in 
a  case,  said  :  "  Gentlemen  of  the  jury,  you  might 
as  well  look  for  the  ghost  of  Joyce  Heth  with  a 
lantern,  in  the  sky,  as  for  a  particle  of  truth  in 
this  witness." 

Mr.  Willey,  in  speaking  of  a  certain  firm  of 
lawyers,  said :  "  One  of  them  has  not  brains 
enough  for  a  ground-sparrow ;  they  are  a  con- 
temptible set ;  I  would  n't  trust  them  for  a  gill 
of  peanuts."  He  then  picked  up  from  the  table 
a  pen  whose  handle  bore  marks  of  having  been 
bitten  or  gnawed  oif  at  the  end ;  he  threw  it 
down,  saying,  "  Faugh !  I  wish  we  had  a  bar 
that  weren't  a  set  of  d raccoons." 

A  witness  was  testifying  about  some  goods 
and  chattels  in  an  ordinary  hotel  in  the  country. 
Mr.  Willey  said  to  him :  "  What  number  of 
sheets  and  towels  were  there,  if  such  luxuries 
existed  f  " 

Mr.  Willey  and  Mr.  A.  were  trying  a  case  as 
opposing  counsel,  and  had  various  tilts.  Each 
was   abusive   to   the   other,  and    among   other 


'AoO  L\   RE-TORT. 

things  Mr.  A.  sakl  (holding  out  his  hand  half 
closed)  :  "  I  hold  my  brother  Willey  in  my  hand  ; 
he  is  a  rotten  egg ;  I  forbear  to  crush  him." 
After  the  case  was  through,  I  said :  "  Brother 
Willey,  you  shouldn't  abuse  brother  A.  so 
severely ;  he  is  sick."  Mr.  Willey  replied  lan- 
guidly, "  Poor  thing." 

In  a  case  —  the  parties'  names  I  have  forgot- 
ten —  in  which  Mr.  Willey  was  for  the  plain- 
tiff, he  found  it  necessary  to  make  some  scath- 
ing remarks  relative  to  the  defendant's  conduct. 
He  said  to  the  jury  :  "  The  defendant  had  no 
more  right  to  arrest  the  plaintiff  than  a  Baptist 
minister  has  to  grab  one  of  you  by  the  collar  on 
dry  land  and  thrust  you  against  the  side  of  a 
house  as  an  illustration  of  the  divine  ordinance 
of  baptism ; "  and  for  his  peroration  he  said, 
"  As  for  this  defendant,  he  ought  to  be  taken 
down  to  Owl's  Head  with  a  soldier's  monument 
slung  round  his  neck,  and  there  sunk,  to  await 
the  eternal  repose  of  the  genius  of  gravitation." 

I  said :  "  Mr.  Willey,  is a  liberal  man  ?  " 

"  Liberal !  he  is  so  mean,  his  soul  would  rattle 
in  a  grain  of  mustard-seed." 

Another  time  Mr.  Willey  said :  "  As  to  get- 
ting a  grain  of  truth  from  this  witness,  you 
might  as  well  go  fishing  in  the  sky,  with  an 
anchor  for  a  hook,  and  exjject  a  bite  from  the 
ghost  of  Joyce  Heth." 


THE   NEW   EXGLAXD    CLUrATE.  oOi 

Speaking  of  a  panel  of  jurors,  Mr.  Willey 
said  :  "  Twelve  sucli  heads  were  never  before 
seen  on  the  panel.  The  judge  who  tried  the 
case  could  not  inject  an  idea  into  their  heads 
without  a  surgical  operation." 

Colonel  Thomas  had  a  case  and  argued  it 
half  an  hour,  the  rule  allowing  an  hour.  Mr. 
Willey  in  reply  said  :  "  Colonel  Thomas  nor  any 
one  else  can  argue  this  case  in  an  hour  for  the 
defendant,  and  therefore  all  Colonel  Thomas's 
argument  amounts  to  is  this :  '  Gentlemen,  I 
have  made  up  my  mind  that  my  client  has  a 
good  case,  and  it  is  not  worth  while  for  me  to 
spend  my  time  on  it ;  so  I  respectfully  invite 
you  to  coincide  with  me  ; '  a  very  pretty  way  of 
putting  it." 

Speaking  of  one  of  the  witnesses  who  testified 
in  the  case,  Mr.  Willey  said :  "  He  was  without 
a  drop  of  remorse,  and  as  hard  as  a  cast-iron 
bulldog." 

After  he  returned  from  Europe  he  came  into 
the  court  room  to  see  me,  and  invited  me  to  his 
office ;  as  counsel  were  arguing  a  case  in  court 
I  had  leisure  and  went.  He  gave  me  a  very  en- 
tertaining account  of  his  travels,  particularly  in 
England,  of  which,  I  am  very  sorry  to  say,  I 
took  no  notes.  He  then  changed  the  topic  quite 
suddenly,  and  said  :  "  Willard,  were  you  ever  in 
the  Provinces  ?  "    I  said,  "  Yes."     "  Have   you 


358  IN  RE-TORT. 

ever  been  to  Annapolis,  Nova  Scotia  ?  "    "  Yes," 

I  said.     "Did  you  ever  see  's  place?"     I 

replied  in  the  affirmative.  Said  Mr.  Willey  : 
"  Is  n't  it  a  gem  ?  "  "  It  is  a  beautiful  place." 
"  I  am  going  down  there  to  buy  it,  and  quit 
this  disgusting  New  England.  While  I  was  ne- 
gotiating for  it,  a  gentleman  said  to  me  :  '  Mr. 
Willey,  you  don't  intend  to  live  here  in  winter  ? ' 
'  Why  not,  sir  ? '  I  said.  '  Why,  sir,'  he  said, 
'  the  mercury  goes  down  here  to  ten  degrees 
below  zero.'  With  great  contempt  I  said,  '  Eh  ! 
where  I  was  born,  sir,  my  father  one  Sunday  took 
me  into  a  meeting-house  which  sat  on  four 
stone  posts  with  no  other  underpinning.  I  sat 
in  that  church  and  listened  to  a  sermon  on  Hell 
for  sixty  minutes,  with  the  wind  howling  un- 
derneath the  church  and  blowing  forty  miles  a 
minute,  with  no  fire  in  the  stove  and  the  mercury 
forty  degrees  below  zero  ;  don't  you  think  I  can 
live  here,  sir  ?  Do  you  think  I  was  born  in  a 
sugar-box,  and  nursed  on  heliotropes  ?  '  " 

During  the  trial  of  the  case  of  Elms  vs. 
Kelly,  for  breach  of  promise  to  marry,  there 
was  a  ring  offered  in  evidence  with  this  inscrip- 
tion inside,  "  Dan  to  Belle  ; "  and  it  was  con- 
tended that  Kelly  gave  this  ring  to  the  plaintiff 
on  the  eve  of  a  j^roposed  marriage.  I  was  ap- 
pointed by  the  Supreme  Court  to  go  to  Portland, 
Maine,  where  I  should  meet  a  person  who  would 


EULOGY   ON   GEORGE    C.    WILDE.  359 

go  with  me  and  find  the  jeweler  who  made  it, 
and  see  if  he  coukl  identify  it.  We  fonnd  the 
person  who  made  it,  and  after  some  hesitation 
he  identified  the  ring-.  Mr.  Willey  was  for  the 
plaintiff  in  this  ease.  At  a  certain  point,  Kelly 
became  somewhat  lachiymose.  Some  one  called 
Willey's  attention  to  it,  when  he  burst  out : 
'•  Tears  !  tears  !  from  Dan  Kelly !  I  should  as 
soon  think  of  a  well  of  water  in  the  desert  of 
Sahara  after  the  retirement  of  the  flood !  " 

Early  in  the  summer  of  1875,  George  C. 
Wilde,  the  clerk  of  the  Supreme  Judicial  Court, 
died.  I  have  spoken  of  him  before  as  being  my 
companion  to  Marshfield  to  attend  the  funeral  of 
Daniel  Webster.  He  was  at  times  somewhat 
irascible,  but  a  high-minded,  honest  gentleman, 
and  an  excellent  friend  of  mine.  As  I  am  not 
an  expert  in  eulogy  such  as  Mr.  Wilde  merited, 
I  give  the  remarks  of  Seth  J.  Thomas,  Esq., 
relative  to  him,  before  the  Supreme  Judicial 
Court. 

"  A  poet  supposed  to  be  wise  has  said,  — 

" '  Awhile  these  feeble  forms  endure, 

The  fabric  of  a  day ; 
Then  lose  their  animating'  power, 
And  moulder  back  to  clay.' 

"  Another  wise  or  unwise  man  has  said,  '  The 
Fates   ride   their   horses  by  night.'     They  will 


3G0  IN   RE-TORT. 

overtake  us  ;  we  cannot  escape  them.  They  ride 
faster  than  we  can  run.  We  know  not  at  what 
hour  they  start  nor  when  they  will  arrive.  The 
life  of  Mr.  Wilde  was  longer  than  that  of  most 
men  ;  but  when,  at  length,  the  appointed  hour 
came,  the  destinies  cut  the  silver  thread,  and  he, 
too,  is  gone  !  What  shall  I  say  of  him  ?  Cer- 
tainly I  can  say  nothing  that  you  do  not  already 
know.  When  the  late  President  Walker  was  at 
the  height  of  his  fame,  an  excellent  friend  said : 
'  I  never  knew  that  Dr.  Walker  was  so  great  a 
man,  but  whenever  I  heard  him  preach  I  thought 
this  :  if  I  were  going  to  preach  on  that  subject 
I  would  preach  just  such  a  sermon  as  he  did.' 
A  finer  commendation  could  hardly  have  been 
bestowed.  Similarly  of  Mr.  Wilde,  when  I  tell 
you  I  can  say  nothing  of  him  you  do  not  al- 
ready know,  if  you  deem  me  worthy  to  say  so, 
you  will  agree  that  I  say  much  in  his  praise,  for 
it  implies  that  what  he  was  to  you,  that,  and  no- 
thing else,  he  also  was  to  me ;  not  all  things  to 
all  men,  but  the  same  to  everybody.  He  had  but 
one  face,  and  that  was  manly.  He  was  sincere. 
He  had  also  the  essential  requisites  of  a  good 
officer.  In  the  first  place,  he  knew  his  duty, 
and  in  the  second  place,  he  did  it  straight.  He 
never  went  a  long  way  to  get  that  which  was 
near  at  hand.  He  was  impatient  of  long  pre- 
faces, of  which,  as  Jean  Paul  said, '  Some  die  on 


EULOGY    ON   GEORGE    C.    WILDE.  361 

their  way  to  the  book.'  He  regarded  the  sitting- 
room  as  of  more  vahie  to  a  tired  man  than  the 
vestibule,  —  the  sound  meat  as  less  indispensa- 
ble than  the  unsound  grace  that  is  said  before  it, 
and  for  want  of  which  meat  one  sometimes  faints 
while  the  grace  is  being  said.  Need  I  say  he 
had  sense  ?  He  had  the  honesty  of  an  educated 
lawyer,  —  an  honesty  that  is  classical  and  im- 
movable. He  rejected  all  new  names  for  authen- 
tic virtues  and  vices,  and  continued  to  call  virtue, 
virtue,  and  vice,  vice.  He  was  critical  in  his  con- 
versation. He  sought  the  conversation  of  the 
cheerful.  He  valued  the  judicious.  He  was  in- 
dulgent to  youth.  He  respected  age.  His  likes 
were  strong.  He  kept  his  friendships  in  con- 
stant repair.  He  looked  upon  wealth  as  an 
appurtenance  of  life,  and  esteemed  it  of  more 
consequence  to  live  richly  than  to  die  rich.  Must 
I  say  he  was  too  confiding  ?  He  knew  but  one 
way  to  do  a  thing,  and  that  was  the  straight  way. 
He  had  a  just  pride  in  his  ancestry,  and  loved  to 
talk  of  his  wise  and  altogether  excellent  father ; 
but  yet  it  concerned  him  less  of  what  family  he 
was  born  than  of  what  family  he  was  the  father 
and  head.  His  look  was  kindly.  A  little  girl, 
meeting  him  in  the  street,  was  not  afraid  to  in- 
quire the  way.  He  kept  his  mind  and  his  body 
clean.  He  valued  his  bath  and  his  razors.  He 
was  thoroughly  wholesome.     A  lady  would  not 


3G2  IN   RE-TORT. 

hesitate  to  sit  down  by  his  side  in  a  horse-car. 
He  was  one  that  you  coukl  tie  to,  and  feel  safe. 
He  had  the  key  to  our  hearts,  while  his  own  was 
like  the  Common,  open  on  the  south  side.  His 
mind  was  virtuously  composed.  He  lived  up  to 
the  dignity  of  his  nature,  and  has  not  left  it  dis- 
putable at  the  last,  whether  he  has  been  a  man. 
It  was  fitting  that  he  should  die  in  June-time, 
near  the  close  of  a  long,  warm  day,  and  when 
the  night  is  shortest." 


INDEX. 


Abbott,  Abiel,  110,  111. 

Abbott,  E.  H.,  111. 

Abbott,  John  S.,  232. 

Abbott,   Josiah  G.,   69,  78,  84,  85, 

104,  325. 
Accident  at  sea,  an,  22,  23. 
Adams,  Francis  M.,  47,  48. 
Adams,  John  C,  324. 
Adams,  John  Q.,  178,  179. 
Adams,  Melvin  O.,  162. 
Ad  daituium,  122. 
Albee,  Sumner,  78. 
Aldrich,  P.  Emory,  82,  85-92,  346. 
Allan  Steamship  Company,  199,  200, 

211,  221. 
Allen,  Chief  Justice  Charles,  69,  72, 

73,  92-94,  96,  116,  117. 
Allen,  Justice  Charles,  294. 
Allen,  Samuel,  117. 
Allen,   Stillman   B.,   122,   123,   220, 

232-234,  346. 
Allen,  William,  82,  217. 
AUston,  Washington,  37,  45. 
Alma  Mater,  a  cruel,  210. 
Alterative  medicines,  100. 
"  Amen,"  the  meaning  of,  288,  289. 
American  Monthly  Review,  34. 
American  spirit  of  equality,  the,  30, 

31. 
Ames,  Seth,  72,  96. 
Andrew,  Gov.  John  A.,  73,  74,  245, 

250,  251,  285,  296,  315. 
Andrews,  Asa,  grandfather  of  Jo- 
seph A.  Willard,  2. 
Andrews,  George  H.,  41,  44. 
Andrews,  John  L.,  156. 
Andrews,  W.  H.  H.,  212. 
Angle,  a  left,  197. 
Annapolis,  N.  S.,  358. 
Anvil,  the,  180. 
Apthorp,  Robert  C,  112. 
Arguments  from  the  bench,  273. 
Artillery  and  law,  132-134. 
Atkins,  T.  J.,  257,  258. 
Auctioneer,   an,  quoting  from  The 

Hunchback,  42. 
Auctioneer,  an  original,  10,  11. 


Austin,  ElbridRe  Gerry,  234,  235. 

Avery,  Mr.,  237. 

Ayer,  Phineas,  188,  189. 

Babson,  Thomas  M.,  123,  234. 

Back,  a  broken,  212,  213. 

Bacon,  John  W.,  82,  97,  253. 

Badlam,  Stephen,  28. 

Balize,  Louisiana,  20. 

Bar    Association,   Suffolk    County, 

founded,  78,  79. 
Barker,  James  M.,  82. 
Barnes,  Isaac  O.,  56,  237-239. 
Barrator,  a  common,  293-297. 
Barratry,  a  case  of,  253. 
Barrett,  George,  40,  43,  44. 
Barron,  Asa  T.,  47. 
Barry,  Thomas,  41. 
Barry,  Mrs.  Thomas,  41. 
Barry,  Thomas  E.,  212. 
Bartlett,  Charles,  246. 
Bartlett,  Sidney,  55,  59,  78,  79,  240, 

241,  254. 
Bascom's,  43. 
Bas-relief,  a,  290. 
Bates,  Adua,  of  Boston,  32. 
Beckford,  Mrs.,  145. 
Bell,  Joseph  M.,  241,  254,  258. 
Bemis,  George,  153. 
Benton,  Josiah  H.,  124. 
Beresford,  Lord,  30,  31. 
Bigelow,  Abram,  11. 
Bigelow,   George   T.,    98,  99,  245, 

246,  336. 
Bigelow,  Horatio,  6. 
Bigelow,  Dr.  Jacob,  151. 
Bilious  attack,  a  severe,  125. 
Bishop,  Henry  W.,  55,  68,  99,  100. 
Bishop,  Robert  R.,  83. 
Blaikie,  Rev.  Dr.,  220. 
Blake,  Edward,  152. 
Blake,  William  Rufus,  41,  42. 
Bland's  Theatre,  40. 
Blodgett,  Caleb,  82. 
Bluff,  an  unsuccessful,  260. 
Boardman,  Alonzo  W.,  78. 
Bond,  D;iuicl  W.,  83. 


\  V 


364 


INDEX. 


Booth,  Junius  Brutus,  41,  43. 
Boston  and   Albany  Railroad,  183, 

184,  210. 
Boston  and  Maine  Railroad,  204. 
Boston  Ddilij  Adrertiser,  214. 
Boyer,  President,  23. 
Boyga,  Manuel,  29,  30. 
Boyle,  James,  181,  182. 
Boy's  logic,  a,  139. 
Bradley,  Aaron  A. ,  243-245. 
Bradley,  Joseph  H.,  84,  137. 
Braley,  Henry  K.,  83. 
Bread,  ship,  25,  20. 
Briggs,  Gov.  George  Nixon,  55,  153. 
Briggs,  Thomas  P.,  87-89. 
Brigliaui,  Erastus,  5. 
Brigliam,   Lincoln  F.,   72,  81,  100, 

19S,  2(il. 
Brigham,    WilUam,    137,  262,  263, 

325. 
Bristol  BiU,  306. 
Broker,  a,  102. 
Brown,  A.  R.,  114. 
Brown  vs.  West  End  Railroad,  122. 
Browne,    Albert    Gallatin,    jr.,  73, 

74. 
Bryant,  Napoleon  B.,  79,  127,  247. 
Bullard,  Mr.,  of  New  York,  301. 
Burlen,  Miss  Caroline,  268,  330. 
Burlen  vs.  Shannon,  208,  209,  330. 
Burns,  Deputy  Marshal,  64. 
Burns,  Anthony,  66-68. 
Burt,  William  L.,  192,  193,  254,295, 

296. 
Business,  274. 
Butler,  Gen.    Benjamin  F.,  74,  75, 

131,  132,   169,  210,  247-249,  267- 

209,  292. 
Butler,  John  H.,  105. 
Byington,  Horatio,  54. 
Byles,  the  Misses,  18,  19. 
Byles,  Rev.  Mather,  D.  D.,  18,  19. 
Byrne,  John  L.,  85. 

Cambridge,  3-14. 

Campbell,    Mrs.,   of    the   Tremont 

Theatre,  41. 
Candidates  for    admission    to    the 

bar,  284,  285,  312. 
Care,  due,  215. 

Carpenter,  Rev.  H.  Bernard,  216. 
Carroll,  Richard  M.,  250. 
Castillo,  Manuel,  29. 
Chadwick,  Mr.,  32. 
Chamberlain,  Mr.,  137. 
Chandler,  Peleg  W.,   55,  250,  251, 

285. 
Chandler,  Theophilus  P.,  55,  285. 
Chandler,  T.  P.  and  P.  W.,  326. 


Channing,  Prof.  Edward  Tyrrel,  7. 
Charles  River,  13,  14,  18. 
Chatham,  the  steamship,  226. 
Chief  of  police,  62,  63. 
Child,  David  Lee,  28. 
Child,  Mrs.  David  Lee,  29. 
Cliild,  Linus  M.,  252,  253. 
Choate,  Rufus,  2,  70,  116,  141,  186, 

253-259,  265,  267,  285. 
Cider,  170. 
Clapp,  Amasa,  5,  6. 
Clark,  John  M.,  62. 
Clarke,  Rev.  James  Freeman,  D.D., 

3. 
Client,  an  inaccessible,  175. 
Clifford,  John  Henry,  152,  1.53. 
Cobb,   Major    Moses   G.,   131,   132, 

134-136,  200,  347,  348. 
Cobbler  with  a  broken  neck,  a,  11, 

12. 
Cobblers,  swallowing,  326. 
Coburu,  Daniel  J.,  65,  66. 
Cochran,  Penelope,  marries  Joseph 

A.  Willard,  36. 
Codman,  John,  285. 
Coffin,  Captain,  9,  10. 
Coffin,  Timothy,  260,  261. 
Coit,  Rev.  Mr.,  3. 
Colburn,  Waldo,  82,  353. 
Colby,  H.  G.  O.,  55,  261. 
Cole,  Raymond,  240. 
Coleman,  Mr.,  321,  322. 
Collins,  Patrick  A.,  262. 
Commeucements,  Harvard,  8,  9. 
Committing  a  nuisance,  315. 
Commonwealtli  vs.  Mead,  265-267. 
Conkling,  Roscoe,  190. 
Contempt  of  court,  87-89,  140. 
Converse,  Mr.,  112. 
Conway,  Moncure  D.,  219. 
Cooke,  Benjamin  F.,  159,  262,  263. 
Cooke,  Robert  O.,  37,  38. 
Cooley,  District  Attorney,  265-267. 
Cooper  as  deputy  sheriff,  a,  11. 
Corbett,  James  J.,  175. 
Corcoran,  John  W.,  83. 
Corinth,  Vt.,  51,  52. 
Costa,  Nicola,  29. 
Costs,  rates  of,  308,  309 ;  accrued, 

340,  341. 
Count  Joannes,  293-297. 
Court,  the  Superior,  established,  71 ; 

its  organization,   72  ;    additional 

appointments     and     promotions, 

81-83. 
Court  House,  the  old,  308. 
Court  of  Common  Pleas,  the,  abol- 
ished, 72. 
Court  of  the  County  of  Suffolk,  the 


INDEX. 


365 


Superior,  established,  68;    abol- 

islied,  72. 
Cow,  Bridget  Fitzgerald's,  227-231. 
Cow,  identification  of  a,  1S2,  183. 
Coyle  vs.  the  Fitchburg  Railroad, 

224-22G. 
Cressy,  Mr.,  262,  263. 
Crier,  a  court,  181,  182. 
Crocker,  Henry,  62. 
Crosby,  Captain,  of  the  brig  Juniper, 

murder  of,  26,  27. 
Crowninshield,  F.  B.,  285. 
Crowninshield,    George,    146,    148, 

149. 
Crowninshield,  Richard,  146-149. 
Cuba,  22. 

Cummins,  Judge,  .54. 
Curlew,    H.    B.    M.'a    man-of-war, 

29. 
Currier,  Benjamin  H.,  56. 
Curtis,  Benjamin  Robbins,  55. 
Curtis,  Charles  P.,  55,  235,  236. 
Curtis,  George  Ticknor,  46,  55. 
Cusliing,  Abel,  185,  191. 
Gushing,  Caleb,  69. 
Cushmg,  Luther  S.,  55,  283,  285. 

Dabnev.  Lewis  S.,  117, 118,  222,  223, 

245,  246,  203. 
Daguerreotypes  of  noted    persons. 

101,  102. 
Dalton  vs.  Dalton,  115,  116. 
Damages,  an  action  for,  208,  209. 
Dame,  Abraham  A.,   301,  348-350, 

352. 
Dana,  Edmund  T.,  7,  45. 
Daua,  Richard  H.,  jr.,  6,  31,  32,  78, 

116,  182,  255,  256,  2G3,  2G4,  344- 

346 ;    his   Two    Years  before  the 

Mast,  31,  32. 
Dana,  Thomas,  216. 
Daniel,  Allston's  model  for,  37. 
Davis,  Charles  G.,  64,  239. 
Dehon,  William,  46. 
Delgardo,  a  pirate,  29. 
Democratic  Rerieir,  38. 
Dentists,  future  state  of,  194. 
Derrick,  masculine  or  feniinine,  121. 
Deshon,  Daniel,  191. 
De  Soto,  Bernardo,  29. 
Devens,  Arthur,  6. 
Devens,  Charles,  6.  64-66,  81,  103, 

301. 
Dewey,  Charles  A.,  54,  153. 
Dewey,  Francis  H.,  81. 
Dewey,  Justin,  82. 
Dexter,  Franklin,  149, 153. 
Dickinson,  M.  F.,  122,  123,  213,  214, 

264,  265. 


Disbarment  of  a  colored  lawyer,  244, 

245. 
Dixon,    Mr.,    of    the    Federal    St. 

Tlieatre,  41. 
Dodge,  John  C,  79. 
Dog,  a  dispute  as  to  the  ownership 

of  a,  102,  103. 
Dog,  a  very  large,  117,  118. 
Donnelly,  Cliarles  F.,  125. 
Dorr,  WiUiam  B.,K>. 
Downes  case,  the,  87. 
Dowse,  Mr.,  132. 
Draper,  Dr.,  221,  222. 
Driscoll,  Cornelius,  37. 
Drowning,  escapes  from,  13-15. 
Drunkard,  a  common,  261. 
Dry  measure,  237. 
Ducks,  black,  slaughter  of,  38,  39. 
Dudley,  Mr.,  90. 
Dudley,  E.  G.,  260. 
Dunbar,  James  R.,  83. 
Dunlap,  Andrew,  28. 
Dunning,  Mr.,  32. 
Durant,  Henry  F.,  84,  85,  130,  181, 

182,  265-269. 
Dwyer,  WiUiam  Whitten,  84. 

Edith,  the  yacht,  226. 

Egg,  a  rotten,  356. 

Egg  or  hen,  wliich  first,  223. 

Eldridge,  mate  of  the  brig  Juniper, 

26,  27. 
Elephant  uses  care,  an,  215. 
Ellis,  Captam,  21,  22. 
Elms  vs.  Kelly,  358,  359. 
Elwell,  Captain,  13. 
Ely,  Frederick  D.,  89. 
Emerson,  Ralph  Waldo,  6. 
English,  James  Lloyd,  55,  194,  269, 

270,  344,  351. 
Envelopes,  294-296. 
Epilepsy,  207. 

Error  in  an  execution,  141,  142. 
Escapes  from  dro\v^ling,  13-15. 
Evans,  George,  40. 
Eveleth,     Mr.,    sheriff    of    Suffolk 

County,  61,  62,  153. 
Examinations  for  the  bar,  methods 

of  conducting,  143,  144. 
Exceptions    to    the    manner   of   a 

judge,  106. 
Expander,  an,  241. 
Expert  on  smells,  an,  324. 
Extremities,  proceeding  to,  325. 

Fabyan's,  36,  37. 
Facts  not  wanted,  270. 
Far-away  look,  a,  2C3. 
Farley,  George  F.,  133,  273. 


'MG 


INDEX. 


Faux  pas,  a,  178, 179. 

Fay,  Wilson  M.,  1G2. 

Kclli-rul  Stiv.t  Theatre,  45. 

Fci-t,  (lyiiiK  with  warm,  238,  239. 

Felloes'aiui  tires,  281,  282. 

Feltoii,  Prof.  C.  C,  34. 

Fencing  contest  ou  the  stage,  an  ex- 
citing, 4Z. 

Fera  naturii',  179,  180. 

Ferrer,  Antonio,  30. 

Fe-ssenden,  Franklin  G.,  83. 

Field,  Walbridge  A.,  79. 

Finn,  Henry  J.,  7,  41,  44. 

Fire,  tlie  Great  Boston,  77. 

Fiske,  Angnstus  H.,  55,  70,  71,  270, 
271,  273,  293,  294. 

Fitch,  Dr.,  KM. 

Fitz,  Daniel  F.,  350,  351,  354 

Fitzgerald,  Bridget  (or  Margaret), 
her  cow,  227-231. 

Fitzgerald,  .John  E.,  200,201. 

Flagg  Alley,  44. 

Flatley,  P.  J.,  273. 

Flogged  for  lying,  261. 

Forrest,  Edwin,  41. 

Fort  Steadman,  75,  76. 

Foxeroft,  George  A.,  6. 

Foxcroft,  Israel,  6. 

Freeman,  Mr.,  184,  185, 194. 

Freeman,  Watson,  67. 

FreiscMitz,  Der,  7. 

Fresli  Pond,  7,  8. 

Frost,  Barzillai,  6. 

Frozen  to  death,  96. 

Fryeburg,  Me.,  36,  37. 

Fugitive  slaves,  arrests  of,  64-68, 
239. 

Fuller,  Eugene,  6. 

Fuller,  Henry  W.,  6. 

Fuller,  Richard  F.,  196. 

Fuller,  Richard  H.,  304,  305. 

Gage,  Mr.,  206. 

Gale,  William  B.,  233. 

Gaimon    vs.   The  Allan  Steamship 

Company,  221-223. 
Garcia,  Angel,  29. 
Gardiner,  William  H.,  149. 
Gardner,  William  S.,  82. 
Gargan,  Thomas  J.,  123,  274. 
Gaston,  William,  71,   78,   207,   208, 

274. 
Gaston,  William  A.,  207,  208. 
Geography,  a  question  in,  255,  256. 
George,  Colonel,  170. 
Germ  theory,  the,  221,  222. 
Gerry,  William,  32. 
Gibbs,  Ira,  139,  140. 
Gibert,  Pedro,  29. 


Gilbert,  John,  41. 

Gilbert,  Timotliy,  64. 

Gilson,  Old,  a  cobbler,  11,  12. 

Giraffe,  a,  353. 

Gooch,  Daniel  W.,  119. 

Goodrich,  Charles  B.,  78. 

Goose-liesh,  292. 

Gordon,   the  cobbler's  companion, 

11,  12. 
Gordon  vs.  The  New  York  and  New 

England  Railroad,  242. 
Gotteiiburg,  Sweden,  14,  15. 
Grant,  Gen.  U.  S.,  75,  190,  191. 
Graves,  William  J.,  40. 
Green,  Col.  Nicholas  St.  John,  74, 

75,  210. 
Greenough,  David  S.,  55,  194. 
Greenough,  Horatio,  45. 
Griffin,  J.  Q.  A.,  275-281. 
Guarded,  regarded,  and  disregarded, 

19. 
Guild,  Benjamin,  285. 
Guzman,  Domingo,  30. 

Hale,  Edwin  B.,  338. 

Hale,  George  S.,  78. 

Hallett,  Benjamin  F.,  60,  239,  245, 

282-284,  324,  341. 
Hammond,  John  W.,  82. 
Hardy,  John  H.,  79. 
Harlow,  Thomas  S.,  55. 
Harrison  and  Tyler  campaign,  39, 

40. 
Harvard,  the  sloop,  13. 
Harvard   College,  explosion  at,  35, 

36. 
Harvard  Commencements,  8,  9. 
Hayden,  William,  281,  282,  342. 
Heads  and  points,  141. 
Healy,  John  P.,  134,  157,  251,  284. 
Heaves,  a  cure  for  the,  340. 
Hell  the  last  place,  283. 
Herrick,  William  A.,  128. 
Heth,  Joyce,  355,  356. 
Hield,  Mr.,  of  the  Tremont  Theatre, 

41. 
Higginson,  Thomas  Thacher,  6. 
Higginson,  Tliomas  Wentworth,  67. 
Hill,  Edwin  N.,  263. 
Hill,  Fred.  S.,  41. 
Hillard,  George  S.,  28,  34,  285-288. 
Hilliard,  Abram,  12. 
Hilliard,  William,  172. 
Hoar,  E.  Roikwood,  55, 78, 133,  134, 

198, 199,  207,  208,  299. 
Hoar,  Samuel,  207,  208,  288. 
Hoar,  Sherman,  207,  208. 
Hobbs,  George  M.,  339. 
Hodges,  Edward  F.,  149,  218,  219. 


INDEX. 


367 


Hofr  Latin,  304. 

Holden,  George,  211. 

Holmes,  Rev.  Abiel,  7. 

Holmes,  John,  G. 

Holmes,  John  S.,  92, 93, 259, 289-292. 

Holmes,  Oliver  WeudeU,  33,  161. 

Homer,  George  F.,  255. 

Hoogs,  J.  B.,  137. 

Hopkins,  John,  83. 

Hopkins,  Col.  W.  S.  B.,  215. 

Horse,  selling  a,  330,  331. 

Horseback  excursions,  47-53. 

Horse-dealer,  a  knowing,  235,  236. 

Horse-dealer,  business  methods  of 

a,  11. 
Horse-fly,  a,  19. 

Horse  in  Massachusetts  Hall,  a,  236. 
Horses,  learned,  5,  6. 
Horsford,  Prof.  Eben  N.,  248,  249. 
Howes,  Lewis  W.,  79,  216. 
Hubbard,  Samuel,  54. 
Hubbard,  William  J.,  221. 
Huntington,  Asahel,  271,  272. 
Huntington,  Charles  P.,  69, 103, 104, 

255. 
Hutchins,  E.  W.,232. 
Hutchins,  Henry  C,  78. 
Hutchins,  Horace  G.,  79. 
Hutchins  and  Wheeler,  55,  71,  341. 
Hutchinson,  P.  Henry,  105, 160, 170, 

171,  189. 

Illustrations,  practical,  183, 213, 214. 
Indian,  a  drunken,  56. 
Indorsement,  an,  185. 
Irish,  Francis  O.,  344. 
Irishman's  retort,  an,  284. 
Irish  question,  the,  291. 
Ives,  Stephen  B.,  163. 

Jackson,  Francis,  64. 
Jackson,  Dr.  J.  B.  S.,  151. 
Jamaica,  20,  21. 

Jeffries,  James,  of  Rhode  Island,  32. 
Jews  in  court,  104. 
Joannes,  Count,  293-297. 
Jo  Cosely,  163. 
Johnson,  William  F.,'41. 
Jonah's  boots,  320,  321. 
Jones,  Senator,  190,  249. 
Jones,  George,  293-297. 
Jones,  Joseph  S.,  41. 
Josepli  and  Otis,  trial  of,  26,  27. 
Judas's  feelings,  324. 
Judge,  an  ignorant,  101-103. 
Judson,  Walter  H.,  193,  194. 
Juniper,  the  brig,  26,  27. 
Juries  change  in  method  of  impanel- 
ing, 80,  84. 


Juror,  an  intoxicated,  lOG,  107. 
Juror,  evidence  from  a,  210. 
Jurors'   excuses,  105,  111-114,  118, 

127,  173,  174. 
Jury,  trial  by,  Judge  Aldrich  on,  90. 
Justice  vs.  business,  336,  337. 

Keith,  James  M.,  78. 

Kimball,  Eben,  4. 

King,  John  J.,  189. 

King,  T.  B.,  91. 

Kingsbury,  George  H.,  161. 

Kingsley,  Charles  M.,  156. 

Kinney,  Mrs.,  331. 

Kirkland,  Pres.  John  Thornton,  6. 

Kline,  Mr.,  of  the  Tremont  Theatre, 

41. 
Klous,  S.,329. 

Knapp,  Mr.,  a  Boston  lawyer,  45. 
Kuapp,  Mr.,  clerk  of  the  Justices' 

Court,  102,  103,  243. 
Knapp,  John  Francis,  145-149. 
Knapp,  Capt.  Joseph  J.,  145-147. 
Knapp,  Jo.seph  J.,  jr.,  145-148. 
Knapp,    Nathaniel    Fhippen,    146, 

147. 
Kneeland,  Abner,  45. 

Lacedaemon,  327. 

Lafayette,  Marquis  de,  5. 

Lane,  John  C,  249. 

Lapsus  linguae,  a,  159. 

Latlirop,  John,  83,  313. 

Lauriat,  Mr.,  an  aeronaut,  13. 

Law,  presumed  to  be  justice,  107. 

Lawyer,  a  mulatto,  243-245. 

Lawyer,  an  intoxicated,  198,  199. 

Lawyer,  a  sensitive,  217. 

Lawyers,  tedious,  113. 

Lawyer  without  an  oflSce,  a,  126. 

Lee,  John,  35,  36. 

Legle  jockeys,  195. 

Leg  to  stand  on,  a,  313. 

Levy  vs.  Bornstein,  223,  224. 

Lewis,  Alonzo,  34. 

Lewis,  Capt.  Isaiah  W.  P.,  20-22. 

Libellee,  a  large,  168. 

Lilley,  Charles  S.,  83. 

Lincoln,  Gov.  Levi,  145. 

Lin.scott,  Daniel  C,  78. 

Littlefield,  Ephraim,  150,  154,  155. 

Locke,  John  G.,  111. 

Log  cabins  in  politics,  39.  ^ 

Long,  John  D.,  79,  211. 

Lord,   Otis  P.,  2,  72,  100,  104-115, 

197,  241,  242,  328. 
Loring,  Caleb  William,  55,  255. 
Loring,  Charles  G.,  55. 
Loring,  Edward  G.,  66,  285. 


368 


INDEX. 


LorinR,  Ellis  Gray,  64. 
Lowell,  John,  59,  60. 
Lynde,  A.  V.,  'J97. 
Lynn  Hotel,  16. 

Mackie,  Mr.,  of  New  Bedford,  210. 

MaRuire,  Thomas  F.,  291. 

Maine,  Sebeus  C,  193,  282,  31C. 

Mann,  Horace,  285. 

Maimers,  inimitable,  353. 

Man  -  of  -  war,  studying  law  on  a, 

144. 
Marshfleld,  46,  47. 
Marston,  George,  343. 
Mason,  Albert,  82. 
Mason,  D.  H.,  341. 
Mason,  Jeremiah,  284. 
Masonry  and  Anti-Masonry,  193. 
Massasoit  Packing  Co.,  85. 
Maxwell,  Major  J.  A.,  289. 
Maynard,  Elisha  B.,  83. 
McCleary,  Samuel  F.,  160,  161. 
McCleUan,  John,  111,  112. 
McKean,  Henry  S.,  6. 
Meacham,  Col.  George,  11,  235,  236. 
Meade,  Gen.  George  G.,  99. 
Medicine,  horse,  137. 
Meionaou   Hall,  as  a  court  room, 

73. 
Mellen,  Edward,  54,  330. 
Mendum,  Jack,  15,  16. 
Merrick,  Pliny,  55,   116,   117,   153, 

248,  273. 
Merwin,  Elias,  142. 
Metcalf,  Theron,  153,  257,  314. 
Mexican,  the  brig,  28,  29. 
Milk  of  human  kindness,  the,  327. 
Mind-reading,  161. 
Mississippi  River,  20,  21. 
Model,  a  misleading,  242,  243. 
Montego  Bay,  20,  21. 
Montenegro,  Juan,  29. 
Montgomery,  convicted  of  robbing 

a  stage,  323. 
Morgan,  David,  151. 
Morrill,  George,  32. 
Morris,  Robert,  244,  282,  298-300. 
Morse,  Mr.,  191,  192. 
Morse,  Cyrus,  3-5. 
Morse,  Mrs.  Cyrus,  4. 
Morse,  Isaac  S.,  300. 
Morse,  Nathan,  79,  253,  301,  310. 
Morse,  Robert  M.,  300,  339. 
Morse,  Royal,  10,  11. 
Morton,  Gov.  Marcus,  37,  38. 
Morton,   Marcus,   jr.,   69,   72,   117, 

118,  1C3,  255. 
Morton,  Perez,  146, 148. 
Mt.  Auburn,  18. 


Mt.  Mansfield,  48-51. 

Mugford,  Samuel,  32. 

Munroe,  Deacon,  12,  13. 

Murder  trials,  of  Otis  and  Joseph, 
26,  27  ;  of  the  Knapp  brothers, 
145-149;  of  Dr.  Webster,  150- 
156. 

Murdock'8  Liquid  Food,  174,  175. 

Music,  the  sweetest,  61. 

Nash,  Stephen  G.,  69,  118,  119. 
National  Theatre,  40-42. 
Neale,  Deputy  Sheriff,  190. 
Neck,  a  broken,  12. 
Negative,  alleging  a,  138. 
Nelson,  Albert  H., 69,  70. 
New  Oi'leaus,  21,  22,  24. 
Newton,  Jeremiah  L.,  107,  297. 
New  York  and  New  Haven  Rail- 
road, 321,  322. 
Nickerson,  Joseph,  294-296,  301. 
Notes,  good,  325. 
Noticing  the  Court,  98. 

Oath,  methods  of  administering  the, 

191,  192. 
O'Loughlin,  Patrick,  127. 
Old   Times  and  New,  by  Allen  C. 

Spooner,  332-336. 
Original  papers,  care  of,  59. 
Otis  and  Joseph,  trial  of,  26,  27. 
Overcoat,  a  stolen,  311,  312. 

Packard,   Mr.,   of    Marshfleld,   46, 

47. 
Paige,  John  C,  317. 
Paine,  Henry  W.,  70,  78,  131,  301- 

304. 
Paine,  John  T.,  304. 
Palmer,  Mr.,  of  the  National  The- 
atre, 41. 
Panda,  or  Pinda,  the,  a  slaveship. 

28,  29. 
Panorama,  a,  286. 
Pants,  not  the  subject  of  larceny, 

281 
Park,'  John  C,  55,  71,  94,  114,  167, 

257,  258,  304,  305,  328. 
Parker,  Col.  Edward  G.,  259. 
Parker,  Francis  E.,  306,  307. 
Parker,  Harvey  D.,  341. 
Parker,  Henry  M.,  133. 
Parker,  Horatio  G.,  309,  310. 
Parker,  Isaac,  148. 
Parker,  Samuel  D.,  57,  58,  139,  152, 

193,  306,  307. 
Parker,  Theodore,  67. 
Parkman,  Dr.  George,  the  murder 

of,  150-156. 


INDEX. 


369 


Pannenter,  William  E.,  119. 

Parsons,  Tlieopliilus,  285. 

Parsoii.s,  Chief  Justice  Tlieopliilus, 

119,  I'JO. 
Partnership,  177,  178. 
Passenger,  removing  a,  321,  322. 
Paunclieous  Pilate,  326. 
Peabody,  Rev.  Andrew  P.,  D.  D., 

34. 
Pearson,  Mr.,  110. 
Pelby,  Mr.,  manager  of  the  National 

Theatre,  40,  42. 
Pelby,  WUliaiii,  41. 
PeUon,  Florentine  W.,  248. 
Perkins,  Jonathan  C,  54. 
Perry,  Ba.xter  E.,  78. 
Peterson,  James  H.,  26,  27. 
Peyton,  Capt.  WiUiam  N.,  28. 
Phillips,  Mr.,  of  Rhode  Island,  32. 
Phillips,  George  William,  55. 
Phillips,  Thomas  W.,  56,  58. 
Phillips,  Wendell,  34,  64,  67,  219. 
Pigeons,  wild,  killing,  17,  18. 
Pillsbury,  Albert  E.,  79. 
Pinda,  or  Panda,  the,  a  slaveship, 

28,  29. 
Piracy  trial,  a,  28-30. 
Pitman,  Robert    C,    82,    120-128, 

222,  262,  274. 
Poems,  by  George  S.  Hillard,  285, 

286;   by  Allen  C.  Spooner,  331- 

336. 
Poet,  a  legal,  331-336. 
Pomeroy,  Mr.,  of   Sweet  Auburn, 

IS. 
Pontius  Pilate,  326,  329. 
Pony,  a  valuable,  176,  177. 
Port-au-Prince,  22,  23. 
Porter's  Tavern,  40. 
Portsmouth,  15,  16. 
Pound,  the,  as  an  asylum,  196. 
Power,  Thomas,  50. 
Prayers,  effective,  158. 
Prayers  for  instructions,  212. 
Presentation  speech,  a,  129. 
Prince,  Frederick  O.,  56. 
Proctor,  Redfield,  128. 
Profits  and  receipts,  122. 
Ptolemy  III.,  death  of,  259. 
Pulsifer,  David,  343. 
Putnam,  Rev.  George,  D.  D.,  153. 
Putnam,  John  P.,  72. 

Quotation,  a  well-known,  273. 

Railroad  accident,  a  strange,  224- 

226. 
Railroad  fares,  183,  184. 
Rand,  Benjamin,  55. 


Rand,  Warren,  and  Fiske,  55. 
Randall,  Samuel  J.,  173. 
Randolph  vs.  O'Riordau  el  al.,  217, 

218. 
Raiiney,  Ambrose  A.,  103,  310,  311. 
Rantoul,  Robert,  8,  149. 
Read,  James  B.,  4. 
Receipt  for  a  fine  wanted,  a,  56. 
Receipts  and  profits,  122. 
Redfield,  Isaac  F.,  128,  129,  314. 
Reed,  Chester  I.,  81,  129,  314,  315. 
Rhomboid  test,  the,  2W,  265. 
Rich  and  Stetson,  Messrs.,  2.50. 
Richardson,  Ivory  W.,  246,  312. 
Richardson,  James  B.,  78,  83. 
Richardson,  Nathaniel,  349. 
Riddle,  Edward  and  James,  42. 
Riley,  Patrick,  239. 
Ring,  James,  263. 
Rockwell,  Julius,  72,  100,  129. 
Rogers,  John,  his  warm  feet,  239. 
Rogers,  John  G.,  56,  296,  297.' 
Romeo,  on  his  knees,  296. 
Ropes,  John  Codman,  295,  296. 
Ruiz,  Francisco,  29,  30. 
Rural  hospitality,  51-53. 
Russ,  Augustus,  78,  313,  314. 
Russell,  Benjamin  F.,  311,  312. 
Russell,  Charles  Theodore,  55,  78. 
Russell,  Thomas,  72. 
Russell,  Thomas  H.,  55. 
Russell,  William  E.,  124,  125. 
Russell,  WilUam  G.,  55,  79,  354. 

St.  Helena,  24. 

Sales,  Francis,  8. 

Salmon,  the  adventures  of  a,  302, 

303. 
Saltonstall,  Leverett,  193. 
Sanford,  J.  B.,  205. 

Sanford, ,  6. 

Sargent,  John  O.,  285. 

Sargent,  Lucius  M.,  235,  236. 

Sawyer,  Frederick  W.,  320,  341. 

Sawyer,  John  J.,  31. 

Scripture  quotations,  316. 

Scudder,  Henry  E.,  82. 

Scurvy,  210. 

Searle,  George  W.,  298. 

Seccomb  et  al.   vs.  The  Provincial 

Insurance  Company,  255,  256. 
Seedy  loco,  a,  119. 
Sennott,  George,  191,  314-316. 
Settlement,  a  philanthropic,  250. 
Sewall,  Samuel  E.,  64. 
Shadrach,  the  rescue  of,  239. 
Sham  demurrer,  172. 
Shannon,  Mr.,  330. 
Shattuck,  George  O.,  79,  339. 


:^70 


INDEX. 


Sliaw,  Lemuel,  54,  59,  79,  130-136, 

IM,  153,  309,  329. 

Shiiw,  Robert  G.,  jr.,  151. 

Shea,  R.  W.,  128. 

Sliopp  eatiiiR  a  colt's  tail,  317,  318. 

Sheldon,  H(iiiry  N.,  83. 

Sherniiiii,  Edgar  J.,  82. 

ShootiiiK,  17,  18,  38,  39. 

Shurtlelt,  Hiram  S.,  314,  315. 

"Sliylock,"  111. 

Siamese  twins,  the,  9,  10. 

Silver  cup,  a,  307. 

Simmons,  D.  A.,  131. 

Sims,  Thomas,  64-66,  219. 

Sisters  in  law,  268. 

Six  3fon(hs  in  the  Hcnise  of  Correc- 
tion, by  William  J.  Snelling,  33. 

Skill,  want  of,  114,  115. 

Slaves,  fugitive,  arrests  of,  64-68, 
239. 

Sloop  Harvard,  the,  13. 

Smith,  John,  37. 

Smith,  J.  R.,  313. 

Smith,  Matthew  Hale,  316. 

Smith,  Matthew  WeUs,  188. 

Smith,  Polly,  251. 

Smith,  Robert  D.,  79,  316-318. 

Smith,  William  H.,  40,  41,  43. 

Smith,  Mrs.  William  H.,  42. 

Smoking,  homoeopathic,  311. 

Smyrna,  255. 

Snelling,  William  J.,  33,  44  ;  his  Six 
Months  in  the  House  of  Correc- 
tion. 33  ;  his  Truth,  a  Gift  to 
Scribblers,  33. 

Snow,  Peter  and  Solomon,  10. 

Sohier,  Edward  D.,  61,  62,  71,  78, 
153,  179,  194,  232,  318-331. 

Sohier,  William,  39. 

Sohier,  William  D.,  318,  329. 

Sohier  and  Welch,  55,  323. 

Somerby,  Gustavus  A.,  237,  255, 
351-354. 

Southerner  in  court,  a,  85,  86. 

Special  pleading,  a  bit  of,  329. 

Spelling-school,  214. 

Spooner,  Allen  C,  331-336. 

Sprague,  Charles  W.,  300. 

Sprague,  Peleg,  238. 

Squirrels,  309,  310. 

Stable  law,  157. 

Stackpole,  Stephen  A.,  153. 

Stage-driver,  an  old,  3-5. 

Stage-driver,  a  short,  15, 16. 

Stage  lines,  3,  4,  16. 

Stanwood,  Jacob,  351. 

Staples,  Hamilton  B.,  82. 

Stearns,  William  S.,  122. 

Stearns,  William  S.,  339. 


Stemhold  and  Hopkins,  267,  268. 

Stevens,  Munro,  92-94. 

Stevens,  William  G.,  285. 

Stone,  Richard,  246. 

Storey,  Charles  W.,  337. 

Storey,  Moorfield,  79. 

Story,  Joseph,  28. 

Suffolk    County     Bar    Association 

founded,  78,  79. 
Sullivan,  John,  58. 
Sumner,  Charles,  34,  285. 
Superfluous  Lags,  Mr.,  115. 
Superior  Court,  the,  established,  71 ; 

its    organization,   72 ;    additional 

appointments  and  promotions,  81- 

83. 
Superior  Court  of   the   County  of 

Suffolk,     the,     established,    68  ; 

abolished,  72. 
Supreme    Court,    the,    versus   Mr. 

Hilliard,  12. 
Suter,  Hales  W.,  78. 
Smtm  cvique,  320. 
Swasey,  Mr.,  125,  246,  247. 
Swasey,  Horatio  B.,  338. 
Sweet  Auburn,  18. 
Sweetser,  Theodore,  311,  353. 

Tad  Pole  and  Polly  Wog,  326. 

Talker,  a  fast,  283. 

Tarbell,  Mr. ,  deputy  sheriff,  11. 

Taylor,  Father,  27. 

Taylor,  Rev.  Edward,  27. 

Teamster  on  the  witness  stand,  a, 

214. 
Teeth,  a  new  set  wanted,  330. 
Telephone  blank,  a  love-letter  on  a, 

97. 
Teutonic  sausages,  292. 
Thaxter,  David,  79. 
Theatres,  40^5. 
Thomas,  Charles  G.,  341,  342. 
Thomas,  J.  B.  F.,  341. 
Thomas,   Col.    Seth  J.,   71,  78,  92, 

301,   338-340,  349,   350,  357;   his 

eulogy  on  George  C.  Wilde,  359- 

362. 
Thompson,  Charles  P.,  82,  163. 
Tiukham,  Adams  &  Co.,  178,  179. 
Tompson,  Samuel,  161. 
Torrey,  George  A.,  97,  342,  343. 
Tory,  a,  19. 

Train,  Charles  R.,  169,  343. 
Traveres,  Mr.,  28. 
Treadwell,  John  P.,  249. 
Treanor,  Bernard  S.,  344. 
Tree,  Ellen,  42. 
Tremont  Theatre,  40,  41,  44. 
Trial  by  jury.  Judge  Aldrich  on,  90 


INDEX. 


371 


True,  an  old  colored  man,  16. 
Truth,  ri  Gift  to  Scribblers,  by  WU- 

liani  J.  Suelliug,  33. 
Tudor's  Buildings,  37,  341. 
Tukey,  Francis,  40,  Oi. 
Turner,  Alfred  J.,  186. 
Two    Years    be/ore    the    Mast,  by 

Dana,  31,  32. 
Typhoid  fever,  221,  222. 

Underhand  work,  267. 
Underbill,  Vt.,  48. 
Underwood,  Francis  H.,  294. 

Van  Duzee,  Ira  D.,  344. 

Velasques,  JostS,  30. 

Vose,  Henry,  72,  328. 

V'oyage  of  Life,  The,  by  Allen  C. 

Spoouer,  331,  332. 
Voyages,  19-26,  32. 

"Wager,  a,  304,  305. 

Wakefield,  Mr.,  107. 

Walker,  President  James,  360. 

Wall-eyed,  245. 

Ward,  Joshua  H.,  55. 

Ware,  Charles  E.,  6. 

Ware,  Rev.  Dr.  Henry,  6. 

Warren,  Charles  H.,  54,  55. 

Washburn,  Ale.xauder  C.,  56. 

Washburn,  Emory,  55. 

Washburne,  Frank  L.,  247. 

Waterbury,  Vt.,  49. 

Waterford,  Marquis  of,  30,  31. 

Webster,    Daniel,    40,    45-47,    134, 

149,  344,  348. 
Webster,  Dr.  John  White,  150-155. 
Webster's  Dictionary,  141. 
Weeding  at  sea,  212. 
Welch,  Charles  A.,  55,  78,  183,  184, 

319  320  330. 
Wells',  Daniel,   55,  62,  63,  136-140, 

181,  182,  281,  337. 
Wells.  Samuel,  344-346. 
West  End  Street  Railway,  213,  214. 
Westford  Academy,  3. 
West  Indies,  a  voyage  to,  19-24. 
Wheeler,  Alexander  S.,  55,  78. 
Wliite,  Joseph,  145,  147,  148. 
White  Mountains,  36,  37. 
White  River,  49. 
Whiting,  William,  354. 
Whituig  and  Russell,  55. 
Whittemore,  Rev.  Thomas,  282, 283. 
Wille,  George  C,   46,  56,  61,  130, 

359-302. 
Wilde,  Samuel  S.,  54, 140,  141,  153. 
Wildes'  hotel,  16. 
Wilkinson,  Ezra,  72,  142-144. 


Willard,  Joseph,  cousin  of  Joseph  A. 
Willard,  346. 

Willard,  Joseph,  grandfather  of 
Joseph  A.  Willard,  1,  2. 

Willard,  Joseph,  uncle  of  Joseph  A. 
WiUard,  54,  62,  76,  77,  184,  185, 
190,  307,  324. 

Willard,  Joseph  A. :  ancestry  and 
parentage,  1,  2;  birth  and  child- 
hood, 3,  4;  school -days,  3-19; 
voyages,  19-26  ;  marries  Penelope 
Cochran,  36 ;  horseback  excur- 
sions, 47-53  ;  becomes  an  assist- 
ant to  his  uncle,  Joseph  Willard, 
Esq.,  Clerk  of  the  Court  of  Com- 
mon Pleas,  54 ;  is  admitted  to  the 
bar,  56  ;  becomes  a  deputy  sheriff, 
61,  62;  causes  improvements  to 
be  made  in  the  court  room,  64  ; 
appointed  assistant  clerk  of  the 
Superior  Court  of  the  County  of 
Suffolk,  70,  71  ;  appointed  Clerk 
of  the  Superior  Court  of  Mas- 
sachusetts, to  fill  the  vacancy 
caused  by  his  uncle's  death,  77 ; 
election  and  successive  reelec- 
tionsto  the  office,  77,  81. 

Willard,  Mrs.  Joseph  A.,  49-51. 

Willard,  Paul,  96,  132. 

Willard,  Sidney,  father  of  Joseph 
A.  Willard,  2,  3,  7,  34-36,  151, 
152,  319,  344. 

Willard,  Solomon,  cousin  of  Sidney 
Willard,  73. 

Willev,  Tolman,  55,  271,  329,  341, 
346-359. 

Williams,  Mr.,  of  the  National  The- 
atre, 41. 

Williams,  John  M.,  54. 

Willis  et  at.  vs.  The  Merchants'  and 
Miners'  Transportation  Company, 
226  227. 

Will  of  J.  Q.  A.  Griffin,  the,  276- 
281. 

Wilson,  General,  of  Keene,  40. 

Wilson,  John,  306. 

Wilson,  William  W.,  323,  324. 

Wine,  ipecac  in,  109. 

Witness,  a  pious,  142,  143. 

Witness,  a  too  willing,  188,  189. 

Wool,  not  an  expert  on,  300,  301. 

Wright,  John,  3. 

Writ  served  under  difficulties,  a,  190. 

Wyeth,  Jacob.  7. 

Wyeth,  Jonas,  8. 

Wyeth,  Nathaniel  J.,  8. 

Wyman,  Dr.  Morrill,  51. 

Young,  George,  239. 


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